Privacy Law vs Investigative Journalism: Balancing Rights in the Digital Age

Eva Ryall

Introduction

The tension between an individual’s right to privacy and the media’s role as a democratic watchdog through investigative journalism is one of the defining legal struggles of the digital age. Nowhere is this conflict more acute than in the application of the “public interest” test in UK media-privacy litigation. Although framed as an objective safeguard balancing Article 8 (privacy) and Article 10 (freedom of expression) rights under the European Convention on Human Rights, the public interest test operates with striking inconsistency. Its fact-sensitive nature grants courts wide discretion, but in an era of instant digital dissemination and social media speculation, that discretion increasingly risks producing uncertainty rather than clarity.

The Legal Framework Behind Privacy and Expression

Media privacy law and expression is primarily governed by the Human Rights Act 1998, which incorporates Article 8 (the right to respect for private and family life) and Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR) into domestic law. Courts conduct a fact-sensitive, case-by-case balancing exercise, determining whether interference with one right is justified by the protection of the other with particular emphasis on the principle of proportionality.

This balancing exercise is implemented through the tort of misuse of private information (MPI), developed from the traditional law of breach of confidence by the House of Lords in Campbell v MGN Ltd. MPI reflects a welcome and decisive shift away from the old “Fleet Street” model and towards a rights-based protection of human autonomy and dignity explicitly grounded in Articles 8 and 10 ECHR. Hence, it was created with regards to “the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people”, in the words of Lord Nicholls.

MPI operates through a, now-settled, two-stage test. First, the claimant must show a reasonable expectation of privacy, assessed objectively using the “Murray Test”, which assesses the nature of the information, the claimant’s attributes, the nature of the activity in which the claimant was engaged, and the context of the intrusion. Certain categories – medical data, sexual relationships, and family life – are treated as inherently private. If that threshold is met, the court proceeds to stage two: a balancing exercise weighing the claimant’s Article 8 rights against the publisher’s Article 10 rights, assessing whether publication serves a legitimate public interest.

Crucially, neither right has automatic precedence as they are both qualified rights rather than absolute. Hence, the legal justification of publication depends on whether it contributes to a debate of genuine public interest in light of proportionality, with a particular focus on the comparative importance of the specific rights claimed – as the Supreme Court has since confirmed.

Investigative Journalism and The Public Interest

A consistent theme in the caselaw is a judicial insistence on distinguishing between material that is in the public interest, such as exposing crime, corruption, or serious wrongdoing, and material that merely interests the public. Reporting within the latter cohort does not attract the robust protection of Article 10 as such reporting may reflect sensationalism and, at times, lurid news may be solely intended to titillate, which would fail the public interest test. As a consequence, in such cases, freedom of expression requires a more narrow interpretation when it comes to privacy rights protections.

The landmark judgment in Mosley v News Group Newspapers demonstrated that there is a reasonable expectation of privacy when it comes to private conduct between adults on private property. It rejected the argument that exposing Max Mosley’s private sexual conduct served any public function, holding that consensual private behaviour unrelated to public duties could not be elevated to public interest simply because it fascinated readers. The Supreme Court reaffirmed this approach in PJS v News Group Newspapers, upholding an injunction preventing the publication of an extramarital affair, even though details were already circulating online. The Court emphasised that intrusion must make a legitimate contribution to public debate, not merely satisfy voyeurism or moral curiosity. These decisions reflect deep judicial scepticism toward sensationalism masquerading as accountability journalism.

Pre-Charge Anonymity and the Legal Shield for Suspects

The tension between privacy and expression is particularly acute in the context of criminal investigations, particularly regarding pre-charge anonymity. In the 2018 Richard v BBC case, Mann J recognised that suspects generally have a reasonable expectation of privacy in relation to police investigations, citing the “profound and often irremediable” stigma attached to being publicly associated with alleged criminality. The reasoning was reaffirmed by the 2022 Supreme Court judgment in Bloomberg v ZXC.

The rationale is clear: the presumption of innocence until proven otherwise is fundamental to the rule of law, and public identification frequently results in reputational harm that persists long after exoneration. This protection is especially important in an age where online reporting is permanent and reputational and defamatory damage is effectively irreversible. Furthermore, from a victim-centred perspective, privacy law protections serve as fundamental protection mechanisms, particularly in sensitive sexual or domestic abuse cases. Maintaining privacy among victims can encourage reporting while preventing risking re-traumatisation and deterrence from seeking justice, allowing the pursuit of justice without fear of further harm or harassment.

Although this protective framework has provoked criticism due to concerns of overreach and legally restricting public scrutiny, the courts have consistently rejected the notion that pre-charge identification is itself a necessary condition of accountability.

The Risks of Restrictions on Reporting

These protections are not without cost, where reporting restrictions can create a so-called ‘information vacuum’ – a space rapidly filled by online speculation, conspiracy theories, and misinformation in the public media sphere. The Axel Rudakubana case in early 2025 starkly illustrates this risk. The Attorney General’s advisory notice following the Southport stabbings sought to prevent prejudicial reporting, to protect the integrity of future proceedings and protect fair trial rights. However, delays in releasing verified information, such as the discovery of an Al-Qaeda training manual in the suspect’s home, fuelled online speculation and public unrest, with critics arguing that the absence of authoritative detail undermined trust and contributed to disorder.

This case exposed a modern crisis: Forced injunctions of journalistic silence in a hyper-connected digital environment does not equate to public calm and arguably is counterproductive in its aims. Instead, it can undermine trust in institutions and amplify misinformation. The public interest test, as currently applied, struggles to account for this reality.

Digital Disclosure and the Myth of the ‘Public Domain’

Social media has further complicated the reasonable expectation of privacy, as the internet allows for the distribution and storage of information that previously might have remained private. Courts have repeatedly rejected the argument that information is ‘fair game’ simply because it is accessible online, noting that the availability of information on the internet or social media is not decisive of one’s privacy rights. As Nicklin J observed in the Hayden v Dickenson case in 2020, the question is not whether information is technically public, but whether restraining its further dissemination would serve a useful purpose.

This approach recognises the rise of ‘declarative lifestyles’, in which individuals voluntarily share aspects of their private lives in the virtual world. However, voluntary disclosure does not amount to a blanket waiver of privacy. Both courts and regulators such as IPSO emphasise proportionality: limited self-disclosure does not entitle the press to amplify or weaponise personal information for unrelated narratives.

Conclusion

The public interest test remains the fulcrum of UK media-privacy law, balancing individual dignity against democratic accountability. Yet its application is marked by inconsistency, contextual sensitivity, and growing strain in the digital age. While the protection of suspects, victims, and private individuals is both principled and necessary, the law must also confront the dangers of enforced restriction in an era of uncontrollable misinformation.

If the public interest test is to retain legitimacy, greater doctrinal clarity is required in the law, particularly regarding modern obstacles concerning pre-charge identification, digital dissemination, and the interface between privacy, data protection, and transparency. In the digital age, reform would be welcome to recalibrate the balance between privacy and expression protections to reflect the realities of modern information flows. Without greater structural protection for responsible investigative journalism, both rights risk being weakened rather than protected.