A human right to privacy may also, in the right circumstances, constitute a right to reputation.
In the case of A & B v X & Y & Times Newspapers Limited in the Employment Appeal Tribunal, Justice Soole said he had to perform “a balancing exercise between the principles of open justice and Article 10 against the Second Respondent’s Article 8 right in respect of his honour and reputation – two rights set out in the European Convention on Human Rights”.
On one side, The Times argued that the Employment Tribunal did not have jurisdiction to make a Restricted Reporting Order beyond the date that a judgment is handed down. As newspapers often do, they based their argument on the right to freedom of expression. Justice Soole took a different view, saying that in this instance, the Respondent’s Article 8 right to privacy “in respect of his honour and reputation” prevailed.
We do not know the facts of the case – they are not public. What we do know, is that they involve the Sexual Offences (Amendment) Act 1992. This creates a tension around the silence. In the context of “Me Too”, of controversial NDA’s which hide sexual offences, the judge considered whether the allegations are in fact public issues, needed to fuel political discussion. Are they problems we need to talk about, and therefore report in the media? Justice Soole eventually decided, however, that these considerations were insufficient to overcome the right to privacy.
The Judge cited the Respondent’s “advanced age; distinguished business and public career and honours received”, “his philanthropic work” and other factors as making him particularly vulnerable to accusations in the press. They would be “a public humiliation very difficult to bear”. The judgment concludes that the Respondent’s ECHR article 8 right to privacy was engaged in respect of his honour and reputation. In other words, it was not so much his right to anonymity as his right to preserve his untainted public reputation which was at stake. His right to privacy was in fact a right to reputation.
The judgment grapples with a number of difficult issues and the question of when allegations should be anonymised is not an easy one for any court to answer. This Tribunal took the view that a well-respected name may well merit protection; reputation can sometimes be viewed as a kind of privacy, and therefore, as a human right.