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Clinical law
Wednesday 15 June 2022

Privacy confronting freedom of expression

Two recent judgements reflect on the interplay between Article 8 (of the European Convention on Human Rights) rights to privacy: ‘A right to respect for private and family life…’ and Article 10: 'Everyone has the right to freedom of expression...including the right to hold opinions and to receive and impart information and ideas without interference... '

The first concerned the application of a journalist who wished to screen an interview with a mother within a BBC Panorama programme. It seemed likely that the mother would be critical of the local authority. The intention was to name her and make no alterations to her voice or face. The mother wished to discuss dealings she had had with the local county council; to 'tell her story' in public. There was an obvious risk that if the mother was known by those who watched the programme, then her children would in turn also be identified by those living in the neighbourhood. In this way, her children’s Art. 8 interests in their privacy could be compromised by their mother exercising her Art.10 freedom of expression.

The Herefordshire County Council Children's Services Department had sustained very serious criticism in a series of judgements 2018-2021, and the journalist argued that against this background there was a very strong public interest in a documentary revealing the longstanding problems at HCC. Case law was adduced, supporting the notion that in such cases there is a right of the mother to tell her own story. The court set out the following principles: Firstly, that neither Article takes precedence over the other, but that courts must undertake an 'intense focus' on how the competing rights apply. Secondly, that the child's interests are very important but not determinative, and can be outweighed by the accumulation of other factors. Thirdly, that it is not inevitable that publicity would have an adverse effect on children...and that children have their own privacy rights independent of their parents. Fourthly, the court must give weight to a party's right to 'tell their own story'.

Having heard the evidence, the judge allowed the mother to be named and interviewed on camera, not least because there was strong public interest in HCC's standards of social care. It was also recognised that the interview of a named identifiable person carried more journalistic weight than reporting mere generalities of concern. Nevertheless, the court was careful to point out that although it accepted mother's right to tell her own story, that did not mean that the judge '...accepted the accuracy of what she wants to say, let alone all her criticisms of the HCC. As in so many of such cases, she may have a one-sided view of events and may have failed, and continue to fail, to appreciate legitimate concerns of HCC about the safety of her children. However, that does not remove or even lessen her right to say what she wants in a public forum'.

Finally, the judge considered whether the journalist should be ordered to anonymise the professionals involved in the case and concluded that such a judicial power must be exercised with care. As public employees dealing with the public in ways that have enormous implications for the lives of others, social workers necessarily carry some public accountability. In this case, where no vilification or harassment had been threatened, the court found that there was no justification for anonymity sufficient to justify interference with mothers Article 10 rights.

Coincidentally, 20 days later, the same Judge heard the entirely separate case of a man, JM, who acted in many cases as a sperm donor through private arrangements. He advertised his services on a social media page for lesbian women who were seeking to fall pregnant. In a written agreement with the women to whom he was providing this service, JM recorded that he had Fragile X syndrome, but provided no explanation of what that meant. This heritable autosomal dominant disease causes a range of developmental problems, including learning difficulties and cognitive impairment. Neither of the women in court who commented on JM’s Fragile X disclosure understood the significance of his diagnosis to children they might conceive using his sperm. He told the court he had fathered 15 children.

The court was asked, amongst other matters, to permit reporting of the man's name. The court undertook a balancing exercise between Arts. 8 &10. The judge considered JM’s '...fundamental irresponsibility' in acting as a sperm donor; JM knew that his diagnosis prevented him from acting through a donor clinic, and why. The court noted that the public interest in naming parents can be sufficiently great to overcome the risk of identifying their children...notwithstanding the compromise of their child’s Art. 8 rights to privacy. The judge indicated that despite his diagnosis and severe criticism of his behaviour, JM had continued to offer his donor services on social media. So, there was a public interest in him being named; James MacDougall, in the hope women will hear this story, look him up on the internet, see the judgement, and avoid dealing with him.

These rather practical examples demonstrate how an intense focus on competing human rights can resolve the dilemmas they pose.

Mr Robert Wheeler
Department of clinical law