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Robin Callender Smith

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.

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Mirror, mirror on the wall… are those image rights I see before me?

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

Robin Callender Smith

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From von Hannover (1) to von Hannover (2) and Axel Springer AG: do competing ECHR proportionality factors ever add up to certainty?

Von Hannover v Germany (2) 40660/08 [2012] ECHR 228 and Axel Springer AG v Germany 39954/08 [2012] ECHR 227

Robin Callender Smith

The factual balance between what is found to be an intrusive picture of a celebrity figure ‘out and about’, entitled to Article 8 ECHR privacy rights, and the same picture taken in apparently newsworthy circumstances – where Article 10 ECHR rights to impart information may prevail – is a fine one. A decisive element may be, as in this case, the fact that the pictures in question were not taken surreptitiously.

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Robin Callender Smith

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 by 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.