The approach of the House of Lords clearly lends support to the argument that the courts are moving away from the Coco test in addressing a breach of confidence in the post HRA era. It is submitted that a further discussion of the court's approach to the right to privacy under the ECHR in the post HRA era suggests that the Coco test is not completely obsolete. Rather, it is submitted that the whilst the HRA has fuelled greater judicial discretion in considering privacy rights, the courts remain reluctant to directly address the relationship between Article 8 and Article 10 of the ECHR under UK law.
Accordingly, this has resulted in an uncertain legal position, which arguably retains the relevance of breach of confidence. However, if we consider the judicial approach to breach of confidence post HRA, the principles have clearly developed beyond the Coco three limbed test. The issue of a legal right to privacy has primarily come to the fore through discussions of media accountability in reporting, raising questions as to morality in journalism versus the constitutional right to freedom of speech11.
The role of the media as an arm of the state of sorts12, acting as an accountability safeguard against individuals in power is vital to sustaining the constitutional objective of the UK as a democracy in substance. However, some argue that the public “ right to know defence13” goes beyond the purpose of accountability and effectively grants a licence to the press to invade and dissect the details of an individual’ s private life with impunity14. It is precisely these concerns regarding responsible press reporting which have led to a consideration of whether there needs to be a broader, general right to privacy protected within a legal framework.
Alternatively, this controversial issue has been further complicated by the law of defamation, which protects an individual’ s right to an unblemished reputation. However, it is this very focus that has permitted UK courts and legislators to avoid directly addressing the broader issue of a general right to privacy.
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