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that disclosure was made to the media. Moreover, the applicant
contended that it could not be said that he "unequivocally" waived
his rights under the Convention on 20 August 1995.
2. The Court's assessment
57. Private life is a broad term not susceptible to exhaustive
definition. The Court has already held that elements such as
gender identification, name, sexual orientation and sexual life
are important elements of the personal sphere protected by Article
8. The Article also protects a right to identity and personal
development, and the right to establish and develop relationships
with other human beings and the outside world and it may include
activities of a professional or business nature. There is,
therefore, a zone of interaction of a person with others, even in
a public context, which may fall within the scope of "private
life" (P.G. and J.H. v. the United Kingdom, No. 44787/98, з 56,
ECHR 2001-IX, with further references).
58. In the above-cited P.G. and J.H. case the Court further
noted as follows (paragraph 57):
"There are a number of elements relevant to a consideration of
whether a person's private life is concerned in measures effected
outside a person's home or private premises. Since there are
occasions when people knowingly or intentionally involve
themselves in activities which are or may be recorded or reported
in a public manner, a person's reasonable expectations as to
privacy may be a significant, though not necessarily conclusive
factor. A person who walks down the street will, inevitably, be
visible to any member of the public who is also present.
Monitoring by technological means of the same public scene (e.g. a
security guard viewing through close circuit television) is of a
similar character. Private life considerations may arise however
once any systematic or permanent record comes into existence of
such material from the public domain."
59. The monitoring of the actions of an individual in a public
place by the use of photographic equipment which does not record
the visual data does not, as such, give rise to an interference
with the individual's private life (see, for example, Herbecq and
Another v. Belgium, applications nos. 32200/96 and 32201/96,
Commission decision of 14 January 1998, DR 92-A, p. 92). On the
other hand, the recording of the data and the systematic or
permanent nature of the record may give rise to such
considerations. Accordingly, in both the Rotaru and Amann
judgments (to which the P.G. and J.H. judgment referred) the
compilation of data by security services on particular individuals
even without the use of covert surveillance methods constituted an
interference with the applicants' private lives (Rotaru v. Romania
[GC], No. 28341/95, зз 43 - 44, ECHR 2000-V, and Amann v.
Switzerland [GC], No. 27798/95, зз 65 - 67, ECHR 2000-II). While
the permanent recording of the voices of P.G. and J.H. was made
while they answered questions in police cell as police officers
listened to them, the recording of their voices for further
analysis was regarded as the processing of personal data about
them amounting to an interference with their right to respect for
their private lives (the above-cited P.G. and J.H. judgment, at зз
59 - 60).
60. However, the Court notes that the present applicant did not
complain that the collection of data through the CCTV camera
monitoring of his movements and the creation of a permanent record
of itself amounted to an interference with his private life.
Indeed, he admitted that that function of the CCTV system together
with the consequent involvement of the police may have saved his
life. Rather he argued that it was the disclosure of that record
of his movements to the public in a manner in which he could never
have foreseen which gave rise to such an interference.
61. In this respect, the Court recalls the Lupker and Friedl
cases decided by the Commission which concerned the unforeseen use
by the authorities of photographs which had been previously
voluntarily submitted to them (Lupker and Others v. the
Netherlands, No. 18395/91, Commission decision of 7 December 1992,
unreported) and the use of photographs taken by the authorities
during a public demonstration (Friedl v. Austria, judgment of 31
January 1995, Series A No. 305-B, Friendly Settlement, Commission
report of 19 May 1994, зз 49 - 52). In those cases, the Commission
attached importance to whether the photographs amounted to an
intrusion into the applicant's privacy (as, for instance, by
entering and taking photographs in a person's home), whether the
photograph related to private or public matters and whether the
material thus obtained was envisaged for a limited use or was
likely to be made available to the general public. In the Friedl
case, the Commission noted that there was no such intrusion into
the "inner circle" of the applicant's private life, that the
photographs taken of a public demonstration related to a public
event and that they had been used solely as an aid to policing the
demonstration on the relevant day. In this context, the Commission
attached weight to the fact that the photographs taken remained
anonymous in that no names were noted down, the personal data
recorded and photographs taken were not entered into a data
processing system and no action had been taken to identify the
persons photographed on that occasion by means of data processing
(see Friedl v. Austria, the above cited Commission report, зз 50 -
51). Similarly, in the Lupker case, the Commission specifically
noted that the police used the photographs to identify offenders
in criminal proceedings only and that there was no suggestion that
the photographs had been made available to the general public or
would be used for any other purpose.
62. The present applicant was in a public street but he was not
there for the purposes of participating in any public event and he
was not a public figure. It was late at night, he was deeply
perturbed and in a state of some distress. While he was walking in
public wielding a knife, he was not later charged with any
offence. The actual suicide attempt was neither recorded nor
therefore disclosed. However, footage of the immediate aftermath
was recorded and disclosed by the Council directly to the public
in its "CCTV News". In addition, the footage was disclosed to the
media for further broadcast and publication purposes. Those media
included the audio-visual media: Anglia Television broadcast
locally to approximately 350,000 people and the BBC broadcast
nationally and it is "commonly acknowledged that the audio-visual
media have often a much more immediate and powerful effect than
the print media" (Jersild v. Denmark, judgment of 23 September
1994, Series A No. 298, з 31). The "Yellow Advertiser" circulated
in the applicant's locality to approximately 24,000 persons. The
applicant's identity was not adequately, or in some cases not at
all, masked in the photographs and footage so published and
broadcast. He was recognised by certain members of his family and
by his friends, neighbours and colleagues.
As a result, the relevant moment was viewed to an extent which
far exceeded any exposure to a passer-by or to security
observation (as in the above-cited Herbecq case) and to a degree
surpassing that which the applicant could possibly have foreseen
when he walked in Brentwood on 20 August 1995.
63. Accordingly, the Court considers that the disclosure by the
Council of the relevant footage constituted a serious interference
with the applicant's right to respect for his private life.
B. Whether the interference was in accordance
with the law and pursued a legitimate aim
64. The Government submitted that any interference was "in
accordance with the law" in that it fell within section 163 of the
Criminal Justice and Public Order Act 1994 ("the 1994 Act") and
section 111 of the Local Government Act 1972 ("the 1972 Act"),
both of which provisions complied with the Convention's "quality
of law" requirements. They added that any interference pursued a
legitimate aim: as accepted during the judicial review
proceedings, the Council's intention in installing and operating
the CCTV system and in disclosing footage to the media was the
detection and prevention of crime thereby securing public safety
and private property.
65. The applicant considered that the interference in question
was not "in accordance with the law" because it was not
foreseeable. He argued that the scope and conditions of the
exercise of the discretionary power to disclosure in the 1972 and
1994 Acts were not indicated with sufficient clarity and thereby
failed to protect him against arbitrary interferences with his
rights. He also considered that the disclosure of the CCTV
material had no legitimate aim because any connection between the
aim of detecting and deterring crime and his conduct was too
remote.
66. The Court has noted the terms of section 163 of the 1994
Act and section 111 (1) of the 1972 Act and the judgment of, in
particular, the High Court. That court noted that the purpose of
section 163 of the 1994 Act was to empower a local authority to
provide CCTV equipment in order to promote the prevention of crime
and the welfare of victims of crime. It further noted that the
publicising of information about the successful operation of the
CCTV system reinforced the deterrent effect of its operation. The
Council had the power to distribute the CCTV footage to the media
for transmission by virtue of section 111 (1) of the 1972 Act in
the discharge of their functions under section 163 of the 1994
Act.
67. Accordingly, the Court considers that the disclosure did
have a basis in law and was, with appropriate legal advice,
foreseeable (The Sunday Times v. the United Kingdom (No. 1),
judgment of 26 April 1979, Series A No. 30, з 49).
It also regards the disclosure as having pursued the legitimate
aim of public safety, the prevention of disorder and crime and the
protection of the rights of others.
C. Whether the interference was justified
1. The parties' submissions
68. The Government considered that any interference was
proportionate. They pointed out that the domestic courts had
already assessed the reasonableness of the disclosure, and that
this Court should not substitute its own assessment for that of
the domestic institutions.
69. As to the reasons why any such interference was
proportionate, the Government emphasised their obligation to
protect the life and property of its citizens. Given the margin of
appreciation open to Governments to implement the most suitable
measures to combat crime, the Government's view of CCTV as a
powerful weapon in that combat must be accepted. Disclosure of
CCTV footage complemented this aim: the policy was to give CCTV as
prominent a role as possible in order to avoid covert
surveillance, to inspire public confidence and support for the
system and to deter criminals. This aim of deterrence was
expressly accepted by the High Court as one of the bases of the
Council's conduct, and crime had decreased since the installation
of the CCTV system. An important element of the publicity given to
CCTV had been the release to the media of footage and the CCTV
footage of the applicant was an entirely suitable illustration of
the type of situation constituting good publicity for CCTV. It was
not a private tragedy sensationalised by the disclosure of the
footage since it did not show the applicant's attempted suicide
and it was not apparent from the footage disclosed that he had
made such an attempted or tried to injure himself in any way. It
was not obvious to the Council operator, who did not know on the
relevant evening that the applicant had tried to commit suicide.
Rather the footage evidenced the police defusing a potentially
dangerous situation.
70. In addition, they argued that cooperation with the media to
publicise the CCTV system would be undermined if they had to
obtain the consent of everyone who appeared on the image, the
Government referring to scenes on crowded streets and to footage
which might include missing persons whose consent cannot be
obtained.
71. Moreover, the Government submitted that the nature of the
impugned act and the parties' conduct are relevant considerations
in this context also. As to the impugned act, they point out that
the disclosed footage was obtained neither covertly, intrusively
or selectively obtained and the degree of intrusion was limited.
The applicant, the Government suggested, courted attention by
going to a busy junction at the centre of Brentwood clearly
brandishing a knife, and he compounded the publicity thereafter by
his voluntary appearances in the media. Indeed it was during those
appearances that he was first identified to the public and that
the first public reference was made to his attempted suicide. The
Council, the Government contended, acted in good faith in the
public interest with no commercial motive. Since it had no
facilities to mask faces on CCTV footage, it released the footage
to the media on the basis that the relevant television companies
would mask the applicant's image. The fact that those companies
did not do so, or did so inadequately, was not the responsibility
of the Council.
72. The applicant maintained that the interference was not
proportionate given the serious nature of the interference. The
Council should have, and could have, taken reasonable steps to
identify the applicant and inform themselves of his situation. It
should have, since the purpose of disclosing the film was to
advertise widely the benefits of CCTV and not to identify a
criminal. It could have, because there was only one person in the
image whose identification would have been possible through the
police who had been called by the CCTV operator to the scene.
73. Moreover, he considers that the Council's attempt at
ensuring the masking of the relevant image was inadequate. If the
Council did not have the facilities themselves, they should have
ensured that the media properly carried out the masking. Written
agreements would be a step in the right direction, but none were
completed prior to the disclosures in his case.
74. Furthermore, the applicant submitted that there was no
sufficiently important countervailing public interest. He was not
a public figure and he had no public role. The disclosure was made
not to catch a criminal or find a missing person but to respond to
the general aim of publicising the effectiveness of the CCTV
system, to which aim properly masked images or other less
intrusive footage would have responded.
75. The applicant contested the Government's assertion that the
High Court had assessed the proportionality of the interference.
He also rejected their contention that he courted attention on 20
August 1995. He further disputed their questioning of his
motivation by their reference to his voluntary media appearances
in 1996: his image had already been published and broadcast
without his consent and he was identified by those who knew him.
He then correctly pursued any remedies available, which procedures
were public, and he could not be criticised for speaking about his
predicament to responsible media. He faced the classic dilemma of
one whose privacy has been interfered with: seeking a remedy and
defending one's position by speaking out inevitably leads to
further publicity.
2. The Court's assessment
76. In determining whether the disclosure was "necessary in a
democratic society", the Court will consider whether, in the light
of the case as a whole, the reasons adduced to justify the
disclosure were "relevant and sufficient" and whether the measures
were proportionate to the legitimate aims pursued.
77. In cases concerning the disclosure of personal data, the
Court has also recognised that a margin of appreciation should be
left to the competent national authorities in striking a fair
balance between the relevant conflicting public and private
interests. However, this margin goes hand in hand with European
supervision (Funke v. France, judgment of 23 February 1993, Series
A No. 256-A, з 55) and the scope of this margin depends on such
factors as the nature and seriousness of the interests at stake
and the gravity of the interference (Z. v. Finland, judgment of 25
February 1997, Reports of judgments and Decisions 1997-I, з 99).
78. The above-cited Z. v. Finland judgment related to the
disclosure in court proceedings without the applicant's consent of
his health records including his HIV status. The Court noted that
the protection of personal data was of fundamental importance to a
person's enjoyment of his or her right to respect for private life
and that the domestic law must therefore afford appropriate
safeguards to prevent any such disclosure as may be inconsistent
with the guarantees in Article 8 of the Convention. In so finding,
the Court referred, mutatis mutandis, to Articles 3 з 2 (c), 5, 6
and 9 of the Convention for the Protection of Individuals with
Regard to Automatic Processing of Personal Data (European Treaty
Series No. 108, Strasbourg, 1981). It went on to find that the
above considerations were "especially valid" as regards the
protection of the confidentiality of information about a person's
HIV status, noting that the interests in protecting the
confidentiality of such information weighed heavily in the balance
in determining whether the interference was proportionate to the
legitimate aim pursued. Such interference could not be compatible
with Article 8 of the Convention unless it was justified by an
overriding requirement in the public interest. Any State measures
compelling disclosure of such information without the consent of
the patient and any safeguards designed to secure an effective
protection called for the most careful scrutiny on the part of the
Court.
79. As to the present case, the Court would note at the outset
that the applicant was not charged with, much less convicted of,
an offence. The present case does not therefore concern disclosure
of footage of the commission of a crime.
The Court has also noted, on the one hand, the nature and
seriousness of the interference with the applicant's private life
(paragraph 63 above). On the other hand, the Court appreciates the
strong interest of the State in detecting and preventing crime. It
is not disputed that the CCTV system plays an important role in
these respects and that that role is rendered more effective and
successful through advertising the CCTV system and its benefits.
80. However, the Court notes that the Council had other options
available to it to allow it to achieve the same objectives. In the
first place, it could have identified the applicant through
enquiries with the police and thereby obtained his consent prior
to disclosure. Alternatively, the Council could have masked the
relevant images itself. A further alternative would have been to
take the utmost care in ensuring that the media, to which the
disclosure was made, masked those images. The Court notes that the
Council did not explore the first and second options and considers
that the steps taken by the Council in respect of the third were
inadequate.
81. As to the first option, it is true that individuals may not
give their consent or that such an exercise may not be feasible
where the footage includes images of numerous persons. In such
circumstances, it is arguable that a consent-based system of
disclosure could in practice undermine the promotion of the
effectiveness of the CCTV system. However, in the present case,
such limitations were not particularly relevant. The relevant
footage clearly focussed on and related to one individual only. It
is not disputed that the Council, whose CCTV operator had alerted
the police and observed their intervention, could have made
enquiries with the police to establish the identity of the
applicant and thereby request his consent to disclosure. Indeed,
it appears from the Council's own publication ("CCTV News") of 9
October 1995 that certain enquiries had been made with the police
to establish that the relevant individual had been questioned and
assisted, but not to establish his identity.
82. Alternatively, the Council could have masked such images
itself. While the Government confirmed that the Council did not
have a masking facility, the Court notes that the Council's own
guidelines indicate that it was intended to have such a facility.
Indeed, the Court notes that the Council itself directly disclosed
in its own publication, the "CCTV News", stills taken from the
relevant footage and that no attempt was made to mask those
images.
83. As to the third option of ensuring appropriate and
sufficient masking by the media to whom footage is disclosed, the
Court notes that the High Court found that Anglia Television and
the producers of the BBC programme had been orally requested to
mask the applicant's image. The Court considers, contrary to the
view of the High Court, that it would have been reasonable for the
Council to demand written undertakings of the media to mask
images, which requirement would have emphasised the need to
maintain confidentiality. Indeed the High Court suggested that
lessons could be learnt from this "unfortunate incident" and that,
with the benefit of hindsight, the Council might see if it could
tighten up its guidelines to avoid similar incidents in the
future. The Council itself clearly intended to have a written
licence agreement with the producers of Crime Beat but this does
not appear to have been concluded as no final and signed agreement
was disclosed to the applicant or submitted by the Government to
this Court. The Essex police guidelines recommend written
agreements with masking clauses. Moreover, there is no evidence
that the "Yellow Advertiser" was required to mask the applicant's
image at all.
84. Furthermore, the relevant CCTV material was released with
the aim of promoting the effectiveness of the CCTV system in the
prevention and detection of crime and it was not therefore
unlikely that the footage would be used in such contexts. This
proved to be the case, most notably in the BBC "Crime Beat"
programme. In such circumstances and even though the applicant
does not directly complain about damage to his reputation, the
Court considers that particular care was required of the Council,
which would reasonably have included verifying with the police
whether the individual had, in fact, been charged or not. It is
difficult to accept the Government's explanation that the Council
was unaware of his identity. As noted above, the Council's own
"CCTV News" article of 9 October 1995 would imply that the Council
had established that the relevant individual had been questioned
and given assistance for his problems and could therefore have
verified whether the applicant had, in fact, been charged. Indeed,
the "Yellow Advertiser" had established by 13 October 1995 that
the applicant had not been charged by the police.
85. In sum, the Court does not find that, in the circumstances
of this case, there were relevant or sufficient reasons which
would justify the direct disclosure by the Council to the public
of stills from the footage in own publication "CCTV News" without
the Council obtaining the applicant's consent or masking his
identity, or which would justify its disclosures to the media
without the Council taking steps to ensure so far as possible that
such masking would be effected by the media. The crime prevention
objective and context of the disclosures demanded particular
scrutiny and care in these respects in the present case.
86. Finally, the Court does not find that the applicant's later
voluntary media appearances diminish the serious nature of the
interference or reduce the correlative requirement of care
concerning disclosures. The applicant was the victim of a serious
interference with his right to privacy involving national and
local media coverage: it cannot therefore be held that against him
that he sought thereafter to avail himself of the media to expose
and complain about that wrongdoing.
87. Accordingly, the Court considers that the disclosures by
the Council of the CCTV material in the "CCTV News" and to the
"Yellow Advertiser", Anglia Television and to the BBC were not
accompanied by sufficient safeguards to prevent disclosure
inconsistent with the guarantees of respect for the applicant'
private life contained in Article 8 of the Convention. As such,
the disclosure constituted a disproportionate and therefore
unjustified interference with his private life and a violation of
Article 8 of the Convention.
D. Other complaints under Article 8 of the Convention
88. The applicant also appeared to suggest that the BBC, acting
under Royal Charter, was a public authority as was Anglia
Television which acted under the authority of the ITC constituted
under the Broadcasting Act 1990. Even assuming those media could
rely on their rights under Article 10 of the Convention, their
broadcasts, he argued, also constituted unjustified interferences
with his private life. The Government did not consider that the
applicant had, in fact, made that submission and, in any event,
denied that either the BBC or Anglia Television could be regarded
as organs of the State or public authorities within the meaning of
Article 8 з 2 of the Convention. They relied, inter alia, on
relevant domestic provisions and the conclusions to be drawn from
the inclusion in Article 10 of the Convention of the phrase
concerning the licensing of broadcasting, television or cinema
enterprises.
The applicant also maintained that, given the significant
impact on family members, the disclosure of the footage
constituted a serious interference with his right to respect for
his family life.
89. The Court notes that the question of whether the BBC was an
"emanation of the State" was left open by the Commission in
Huggett v. the United Kingdom (No. 24744/94, decision of 28 June
1995, DR 82-A, p. 98). However, in the light of the Court's
finding of a violation in relation to the disclosure by the
Council (at paragraph 87 above), it does not consider it necessary
separately to consider these complaints.
90. The applicant further argued that the State failed to
fulfil its positive obligation to protect his rights under Article
8 because he had no effective domestic remedy in respect of the
disclosures. The Government maintained that there was no breach of
any positive obligation and, more particularly, they argued that
the applicant had available to him such remedies. The Court
considers that the issue of the availability of a domestic remedy
for the impugned disclosure by the Council is more appropriately
considered under Article 13 of the Convention.
II. Alleged violation of Article 13 in conjunction
with Article 8 of the Convention
91. The applicant complained under Article 13, in conjunction
with Article 8 of the Convention, that he had no effective
domestic remedy in relation to the relevant disclosures by the
Council.
92. Article 13, in so far as relevant, reads as follows:
"Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority... ."
A. The parties' submissions
93. The Government explained that the need for a law of privacy
had been the subject of much debate for many years, many private
member's bills and a number of official reports. The debate
continued. However, the absence of a general right to privacy in
domestic law did not, of itself, show a lack of respect for the
applicant's private life. The question was rather whether the
regime of legal protection which existed adequately protected the
applicant's rights and the Government considered that it did. They
pointed out that the common law and statutory remedies
collectively provided a comprehensive regime of legal protection
for privacy and therefore performed substantially the same
function as a law of privacy.
94. In particular, the Government pointed out that the
applicant had been able to assert and vindicate his claims before
the BSC, the ITC and the PCC. They accepted that it was not
intended that the media commissions should provide a "legal
remedy, in the sense of making pecuniary compensation available,
to an aggrieved individual who may have been injured by an
infringement of the relevant codes". However, they contended that
Article 13 did not require in every case a "court" or that a
pecuniary award be available. In addition, the Government argued
that the remedy of judicial review was also capable, in principle,
of providing an adequate remedy and the rejection of the
applicant's case did not undermine the effectiveness of that
remedy.
95. The Government also maintained that a number of other
remedies were available to the applicant. They considered the
breach of confidence remedy to be the most relevant, suggesting
that the applicant would have been entitled to bring such an
action if he had been filmed "in circumstances giving rise to an
expectation of privacy on his part". The Government underlined
that this was an area of the law which was heavily dependent on
policy considerations and, consequently, it was an area that had
been, and would continue to be, developed by the courts. The
Convention jurisprudence had had an important impact on such
developments and would have an even stronger impact with the
coming into force of the Human Rights Act 1998. They also
submitted that the applicant could have brought an action for
defamation or malicious falsehood if any item had been misreported
so as to suggest that he had been involved in a criminal act of
violence against some other person.
96. The applicant maintained that he had no effective domestic
remedy. He pursued the most relevant remedies (the media
commissions and judicial review) but those remedies were
ineffective: the "irrationality" criteria in judicial review could
not be equated with the proportionality test under Article 8 and
the media commissions could not award damages.
97. In addition, he argued that a breach of confidence action
would have had no realistic prospect of success. He noted that the
Government had not quoted a single case where an individual in a
relatively similar situation had obtained even partial
satisfaction through this remedy. He considered their assertion
that an expectation of privacy would be sufficient to give rise to
such a remedy to be inaccurate in domestic law, and he found it
noteworthy that the Government did not contend that he had failed
to exhaust domestic remedies by not taking such an action.
Moreover, he considered that the other remedies to which the
Government referred were not relevant to his case. Certain of the
statutes came into force after the relevant time, other statutes
(relating, for example, to secret surveillance) could have no
conceivable impact in the present case, and the common law
remedies to which the Government referred (in defamation,
malicious falsehood, harassment and breach of confidence) were
simply not relevant to the applicant in the particular
circumstances of his case.
B. The Court's assessment
98. The Court notes that the applicant complained under Article
8 alone and in conjunction with Article 13 of the Convention,
inter alia, that he did not have effective domestic remedies. The
Government did not argue that the applicant had failed to exhaust
domestic remedies within the meaning of Article 35 з 1 of the
Convention. In the admissibility decision in this case, the Court
considered that there was a close connection between any issue
under Article 35 з 1 and the merits of the applicant's complaints
concerning a lack of an effective domestic remedy and it joined
any issue of exhaustion of domestic remedies to the merits of the
application.
1. The applicable legal principles
99. The Court recalls that Article 13 guarantees the
availability of a remedy at national level to enforce the
substance of Convention rights and freedoms in whatever form they
may happen to be secured in the domestic legal order. Thus, its
effect is to require the provision of a domestic remedy allowing
the "competent national authority" both to deal with the substance
of the relevant Convention complaint and to grant appropriate
relief (Smith and Grady v. the United Kingdom, nos. 33985/96 and
33986/96, з 135, ECHR 1999-VI, and Murray v. the United Kingdom,
judgment of 28 October 1994, Series A No. 300-A, at з 100). That
provision does not, however, require the certainty of a favourable
outcome (the above-cited Amann judgment, at з 88 with further
references) or require the incorporation of the Convention or a
particular form of remedy, Contracting States being afforded a
margin of appreciation in conforming with their obligations under
this provision (Vilvarajah and Others v. the United Kingdom,
judgment of 30 October 1991, Series A No. 215, з 122).
100. The Court further recalls that in the above-cited Smith
and Grady judgment, it described the test of "irrationality"
applied in judicial review proceedings as follows: a court was not
entitled to interfere with the exercise of an administrative
discretion on substantive grounds save where the court was
satisfied that the decision was unreasonable in the sense that it
was beyond the range of responses open to a reasonable decision-
maker. In judging whether the decision-maker had exceeded this
margin of appreciation, the human rights' context was important,
so that the more substantial the interference with human rights,
the more the court would require by way of justification before it
was satisfied that the decision was reasonable.
It was, however, further emphasised by the Court in that case
that, notwithstanding any human rights context, the threshold of
irrationality which an applicant was required to surmount was a
high one, as confirmed by the domestic judgments in that case.
While those courts had commented favourably on those applicants'
submissions challenging the justification of the relevant policy
(against homosexuals in the armed forces), the domestic courts
had, nevertheless, concluded that the policy could not be said to
be beyond the range of responses open to a reasonable decision-
maker and, accordingly, could not be considered to be
"irrational". In such circumstances, the Court considered it clear
that, even assuming that the essential complaints of Smith and
Grady before this Court were before and considered by the domestic
courts, the threshold at which those domestic courts could find
the impugned policy to be irrational had been placed so high that
it effectively excluded any consideration by the domestic courts
of the question of whether the interference with the applicants'
rights answered a pressing social need or was proportionate to the
national security and public order aims pursued, principles which
lay at the heart of the Court's analysis of complaints under
Article 8 of the Convention. It therefore concluded that Messrs
Smith and Grady had no effective remedy in relation to the
violation of their right to respect for their private lives in
violation of Article 13 of the Convention.
2. Application of those principles to the present case
101. The Court observes, in the first place, that the present
case is distinguishable from James and Others v. the United
Kingdom (judgment of 21 February 1986, Series A No. 98, зз 85 -
86), Leander v. Sweden (judgment of 26 March 1987, Series A No.
116, з 77) and The Sunday Times v. the United Kingdom (No. 2)
(judgment of 26 November 1991, Series A No. 217, з 61), which
cases establish that Article 13 cannot be seen as guaranteeing a
remedy against primary legislation or equivalent domestic norms.
The legislation relevant to the present case did not require
disclosure of the CCTV material and the complaint is about the
Council's exercise of its powers to disclose.
(a) the regime of legal protection for privacy
102. As in the Winer case (Winer v. the United Kingdom, No.
10871/84, Commission decision of 10 July 1986, DR 48, p. 154), the
Government argued that the Court should analyse the protection of
privacy by the "regime of legal protection for privacy" as a
whole, this regime effectively carrying out the role of a law of
privacy.
However, the Court's task is not to review the relevant law or
practice in the abstract but rather to confine itself, without
overlooking the general context, to examining the issues raised by
the case before it (the above-cited Amann judgment, at з 88) and,
in particular, to considering only those remedies which could have
some relevance for the applicant (N. v. Sweden, No. 11366/85,
Commission decision of 16 October 1986, DR 50, p. 173; the above-
cited Winer decision; and Stewart-Brady v. the United Kingdom,
nos. 27436/95 and 28406/95, Commission decision of 2 July 1997, DR
90, p. 45). The Court considers that it is not relevant therefore
to examine remedies which were not in force at the relevant time
or those which had no relevance to the facts of the applicant's
case.
103. The Court notes in this regard that the applicant did not
complain about malicious acts on the part of the Council, about
untrue reports or, at least directly, about an attack on his
reputation. It is not disputed that issues of trespass,
harassment, nuisance, copyright, breach of contract or secret
surveillance by security services have no relevance to the
applicant's complaints. Similarly, the Government did not suggest
that the Data Protection Act, the Sexual Offences (Amendment) Act
1976, the Children and Young Persons Act 1933 had any relevance to
the facts of the present case. The Human Rights Act 1998 did not
come into force until October 2000 after the relevant facts of the
applicants' case.
104. The Court has therefore confined its assessment to the
remedies which could be considered to have had some relevance to
the applicant's complaint.
(b) Judicial review
105. The Court has found that the applicant's right to respect
for his private life (see paragraph 87 above) was violated by the
disclosure by the Council of the relevant footage. It notes that
at the material time the Convention did not form part of domestic
law and questions as to whether the disclosure violated the
applicant's rights under Article 8 and, in particular, as to
whether the disclosure had been shown by the authorities to
respond to a pressing social need or to be proportionate to any
legitimate aim served, were not questions to which answers could
be offered.
As in the above-described Smith and Grady judgment, the sole
relevant issue before the domestic courts was whether the policy
could be said to be "irrational". As in the Smith and Grady case,
the present High Court noted that the applicant had suffered an
invasion of privacy but that unless and until there was a general
right of privacy in domestic law, reliance had to be placed on the
guidance provided by codes of practice or otherwise to avoid such
undesirable invasions of privacy. The High Court went on to
examine a number of factors including the important role of CCTV
cameras in public places, the images captured by those cameras,
the fact that the footage was not sold for commercial gain, the
attempt (albeit unsuccessful) by the Council to ensure that the
applicant's identity was masked and the fact that the footage was
not sold for commercial gain. The High Court concluded that, while
lessons could be learned from the unfortunate incident including
the necessity to tighten up the Council's guidelines to seek to
avoid a similar incident in the future, it was satisfied that the
Council could not be said to have acted "irrationally in the sense
that they had taken leave of their senses or had acted in a manner
in which no reasonable authority could sensibly have acted."
106. In such circumstances, the Court considers that the
threshold at which the High Court could find the impugned
disclosure irrational was placed so high that it effectively
excluded any consideration by it of the question of whether the
interference with the applicant's right answered a pressing social
need or was proportionate to the aims pursued, principles which as
noted above lie at the heart of the Court's analysis of complaints
under Article 8 of the Convention.
As to the Government's reference to the above-cited case of
Alconbury Developments Ltd, the Court notes that that case post-
dated the entry into force of the Human Rights Act 1998. Moreover,
the relevant comment concerning the place of the principle of
proportionality in domestic law was accepted by the Government to
be obiter dictum. In any event, the Government do not suggest that
this comment is demonstrative of the full application by domestic
courts of the proportionality principle in considering, in the
judicial review context, cases such as the present.
107. The Court finds therefore that judicial review did not
provide the applicant with an effective remedy in relation to the
violation of his right to respect for his private life.
(c) The media commissions
108. The Court notes that the Government submitted that the
proceedings before these commissions provided the applicant with
an opportunity to assert and vindicate his rights. However, they
accept that those bodies were not "intended to provide a legal
remedy, in the sense of making pecuniary compensation available to
an aggrieved individual who may have been injured by an
infringement of the relevant codes".
109. The Court finds that the lack of legal power of the
commissions to award damages to the applicant means that those
bodies could not provide an effective remedy to him. It notes that
the ITC's power to impose a fine on the relevant television
company does not amount to an award of damages to the applicant.
While the applicant was aware of the Council's disclosures prior
to "Yellow Advertiser" article of February 1996 and the BBC
broadcasts, neither the BSC not the PCC had the power to prevent
such publications or broadcasts.
(d) An action in breach of confidence
110. The Court considers the fact that the Government did not
claim that the applicant had failed to exhaust this remedy to be
particularly noteworthy, given the Commission's finding that Earl
and Countess Spencer's application (cited above) was inadmissible
on this ground.
111. The Court considers that the facts of this case are, in
any event, sufficiently different from those in the Spencer case
as to allow the Court to conclude that the present applicant did
not have an actionable remedy in breach of confidence at the
relevant time, even accepting the Government's description of that
remedy.
In the first place, the Earl and Countess Spencer had a strong
case on the facts that former friends had disclosed in secret
indisputably private information previously given to them on a
confidential basis by the applicants. The present applicant would
have had much greater difficulty in establishing that the footage
disclosed had the "necessary quality of confidence" about it or
that the information had been "imparted in circumstances importing
an obligation of confidence". The Government argued before the
Court under Article 8 that the applicant's right to respect for
his private life had not even been engaged. They have cited no
domestic case which could be considered similar or analogous to
the present case and which would suggest that these two elements
of the breach of confidence claim were satisfied. The above-cited
case of Douglas v. Hello! post-dated the relevant facts of the
present case and, as importantly, the entry into force of the
Human Rights Act 1998. In any event, only one of three judges in
that case indicated that he was prepared to find that there was
now a qualified right to privacy in domestic law. Moreover, the
Court is not persuaded by the Government's argument that a finding
by this Court that the applicant had an "expectation of privacy"
would mean that the elements of the breach of confidence action
were established. The Court finds it to be unlikely that the
domestic courts would have accepted at the relevant time that the
images had the "necessary quality of confidence" about them or
that the information was "imparted in circumstances importing an
obligation of confidence".
Secondly, once the material in question was in the public
domain, its re-publication was not actionable as a breach of
confidence. Such an action could not have been contemplated before
the applicant became aware of the disclosures by the Council of
the CCTV material namely, prior to October or November 1995.
Accordingly, a claim of breach of confidence would not have been
actionable in respect of the "Brentwood Weekly News" or the
"Yellow Advertiser" articles or in respect of the BBC broadcast.
112. Given these deficiencies, it not necessary to consider
whether an award of damages would have been available in a breach
of confidence action. The Court would confine itself to noting
that, despite this being the second area of dispute between the
parties in the above-cited case of the Earl and Countess Spencer,
no attempt has been made by the Government in the present case to
clarify how damages could have been awarded in the absence of a
prior injunction. The applicant could only have applied for such
an injunction after he became aware of the disclosures in late
October/early November 1995 and therefore only against the "Yellow
Advertiser" and the BBC. Although an award of an account of
profits is not dependent on the grant of a prior injunction, the
Government have referred to no case where this has been ordered in
respect of a broadcast. While an account of profits in respect of
the national press was a possibility open to the Earl and Countess
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