Introduction
The proliferation of smartphones and recording devices has transformed public spaces into potential film sets, raising a fundamental conflict between two important rights: the freedom of expression, which includes the right to record and impart information, and the individual's right to a private life. The question of whether the simple act of being in public extinguishes one's right to privacy is not straightforward. This essay will argue that under the law of England and Wales, filming in public does not automatically negate the right to privacy. Instead, the law mandates a nuanced, fact-sensitive balancing exercise. The development of the tort of misuse of private information, heavily influenced by the Human Rights Act 1998,¹ has created a framework where a reasonable expectation of privacy can exist even in public places. The critical issue is not the public location itself, but the nature of the information being recorded and the justification for the intrusion. This essay will first outline the English legal framework, before analysing the concept of a 'reasonable expectation of privacy' in public. It will then explore the balancing act between privacy and expression, supported by domestic and European case law. Finally, a brief comparison with the United States' approach will highlight the distinct nature of the protection afforded in this jurisdiction, before concluding that privacy rights, while diminished, are not extinguished in the public sphere.
The English Legal Framework for Privacy
The modern English law of privacy does not originate from a specific 'right to privacy' statute, but has evolved from the equitable doctrine of breach of confidence.² The catalyst for its transformation was the incorporation of the European Convention on Human Rights (ECHR) into domestic law by the Human Rights Act 1998. This required courts to interpret and apply the law in a manner compatible with the Convention rights, principally Article 8 (the right to respect for private and family life) and Article 10 (the right to freedom of expression).
The landmark House of Lords decision in Campbell v MGN Ltd established the modern tort of misuse of private information.³ In this case, a newspaper published details and photographs of the supermodel Naomi Campbell attending a Narcotics Anonymous meeting. The House of Lords held that this was a misuse of her private information. Lord Hope articulated a two-stage test that now forms the bedrock of this area of law. First, the court must ask whether the claimant has a 'reasonable expectation of privacy' in the information in question.⁴ If this threshold is met, the court must then proceed to the second stage: a balancing exercise between the claimant's Article 8 right to privacy and the defendant's Article 10 right to freedom of expression. This test moves the focus away from the old requirement of a pre-existing relationship of confidence and towards the nature of the information itself. It is within this framework that the question of filming in public must be assessed.
A Reasonable Expectation of Privacy in Public
The idea that one could have a reasonable expectation of privacy in a public street may seem counter-intuitive. However, the courts have decisively rejected the notion that entering public space amounts to a complete waiver of privacy rights. The leading authority is the Court of Appeal's decision in Murray v Express Newspapers plc,⁵ which concerned a photograph of the author J.K. Rowling’s young son being pushed in his buggy on a public street. Lord Justice Laws, giving the judgment of the court, stated that the question of whether there is a reasonable expectation of privacy is a "broad one" and requires consideration of "all the circumstances of the case".⁶
The court identified a non-exhaustive list of factors to be considered, including: the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent, whether the information was already in the public domain, and the effect on the claimant.⁷ In Murray, the fact that the subject was a child was a powerful factor. The court reasoned that while a politician making a speech in a public square would have no reasonable expectation of privacy, the same could not be said for a family on a private outing. The photograph in Murray was covert, taken for commercial purposes, and captured a routine family activity. This established that "the mere fact that an individual is in a public place does not mean that he or she cannot have a reasonable expectation of privacy".⁸
This principle is also evident in European Court of Human Rights (ECtHR) jurisprudence. In Von Hannover v Germany,⁹ the court found that photographs of Princess Caroline of Monaco going about her daily life in public, such as shopping or dining, infringed her Article 8 rights because they did not contribute to a debate of general interest and merely satisfied public curiosity. This confirms that even for public figures, a zone of private interaction exists which is not automatically surrendered by virtue of being in public.
The Balancing Act: Article 8 vs Article 10
Once a reasonable expectation of privacy is established, the court must perform the balancing exercise between Article 8 and Article 10. Neither right has automatic precedence; they are of equal standing and must be weighed against each other.¹⁰ The outcome depends heavily on the specific facts, particularly the purpose and nature of the filming and any subsequent publication.
The case of Peck v United Kingdom¹¹ is highly instructive. Mr Peck was filmed by a council’s CCTV camera in a public street as he walked, feeling distressed and suicidal, with a knife in his hand. The footage was later supplied to the media for inclusion in television programmes about crime prevention. The ECtHR found a serious infringement of his Article 8 rights. Although the initial monitoring for security purposes was legitimate, the widespread disclosure to the media was not. The court held that the disclosure "was not accompanied by sufficient safeguards" to protect Mr Peck's identity and that his right to privacy outweighed the media's freedom of expression in this context.¹² This demonstrates that even when filming in public is justified, the subsequent use of the footage is subject to its own rigorous scrutiny.
More recently, in Richard v BBC,¹³ the High Court considered the case of a police raid on Sir Cliff Richard’s home, which the BBC filmed from a helicopter and broadcast live. The court found that Sir Richard had a reasonable expectation of privacy concerning the police investigation and the search of his home. In balancing the rights, the court held that the BBC's Article 10 right to report on the story did not justify the "sensationalist" and intrusive nature of its coverage.¹⁴ While this case concerned a private home, the filming occurred from a public space (the air) and the principles of the balancing exercise are of general application. It underlines that the manner and justification for the reporting are central to the balancing test. Filming done for citizen journalism to expose wrongdoing would likely be given more weight under Article 10 than filming for pure entertainment or commercial exploitation that targets a private moment.
A Comparative Glance: The United States
The English approach can be contrasted with that of the United States, where the First Amendment's protection of free speech often holds a more dominant position. In the US, a common tort for this type of claim is 'intrusion upon seclusion'. A key element of this tort is that the plaintiff must have been in a "private place" or that their private affairs were being intruded upon.¹⁵ Generally, there is no liability for observing or photographing what is visible to the public eye. The Restatement (Second) of Torts clarifies that a person on a public street "is not then in seclusion, and his appearance is public and to a considerable extent a public matter".¹⁶
However, this does not give photographers a completely free hand. The Californian case of Shulman v Group W Productions, Inc.¹⁷ provides some nuance. A camera crew filmed the rescue of a car crash victim. The court held that footage of the victim at the accident scene on a public highway was not an intrusion, as the events were in "plain public view". However, it held that the victim did have a reasonable expectation of privacy regarding her conversations with the paramedic inside the rescue helicopter, and that a jury could find the secret recording of these conversations to be "highly offensive to a reasonable person".¹⁸ This shows that even within a more speech-protective jurisdiction, the public nature of a location is not an absolute bar to a privacy claim; the context and method of intrusion still matter. Nevertheless, the starting point and the weight given to free speech are markedly different from the balancing exercise mandated by the ECHR and applied in England.
Conclusion
The question of whether filming in public extinguishes the right to privacy is met with a clear negative under English law. The law does not operate on a binary distinction between 'public' and 'private' spaces. Instead, through the tort of misuse of private information, it asks whether the subject of the filming had a reasonable expectation of privacy in all the circumstances. The analysis, guided by the factors set out in Murray, is sensitive to context, the nature of the activity, and the characteristics of the individual. Children, or individuals engaged in personal moments, can retain a significant expectation of privacy even when on a public thoroughfare.
If such an expectation exists, the conflicting rights of privacy under Article 8 and expression under Article 10 must be carefully balanced. The purpose of the filming becomes paramount: reporting on matters of genuine public interest is afforded greater weight than filming intended to harass, embarrass, or merely satisfy public curiosity about a private life. As cases like Peck and Richard demonstrate, the law is concerned with proportionality and preventing unjustified intrusions, regardless of where the camera is located. Therefore, while individuals in public must accept a reduced expectation of privacy compared to when they are in their homes, the right is not extinguished. It remains a valuable interest that the law will protect against unwarranted and intrusive filming and publication.
— ¹ Human Rights Act 1998. ² See Coco v AN Clark (Engineers) Ltd [1968] FSR 415. ³ Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457. ⁴ ibid [21] (Lord Hope). ⁵ Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481. ⁶ ibid [35]. ⁷ ibid [36]. ⁸ Moreham and Warby, The Law of Privacy and the Media (3rd edn, OUP 2016) [3.51]. ⁹ Von Hannover v Germany (2005) 40 EHRR 1. ¹⁰ Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593 [17] (Lord Steyn). ¹¹ Peck v United Kingdom (2003) 36 EHRR 41. ¹² ibid [80]. ¹³ Richard v British Broadcasting Corporation [2018] EWHC 1837 (Ch), [2019] Ch 169. ¹⁴ ibid [421]. ¹⁵ Restatement (Second) of Torts § 652B (1977). ¹⁶ ibid, comment c. ¹⁷ Shulman v Group W Productions, Inc, 955 P 2d 469 (Cal 1998). ¹⁸ ibid, 490.
Bibliography
Table of Cases
Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457
Coco v AN Clark (Engineers) Ltd [1968] FSR 415
Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481
Peck v United Kingdom (2003) 36 EHRR 41
Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593
Richard v British Broadcasting Corporation [2018] EWHC 1837 (Ch), [2019] Ch 169
Shulman v Group W Productions, Inc, 955 P 2d 469 (Cal 1998)
Von Hannover v Germany (2005) 40 EHRR 1
Table of Legislation and Conventions
Human Rights Act 1998
Secondary Sources
American Law Institute, Restatement (Second) of Torts (1977)
Moreham N and Warby M, The Law of Privacy and the Media (3rd edn, OUP 2016)
