Spencer v United Kingdom

Reference: (1998) 25 EHRR CD 105

Court: European Commission of Human Rights

Date of judgment: 16 Jan 1998

Summary: Human Rights- Freedom of expression - breach of confidence -respect for private life - Articles 8 and 13 of ECHR- intrusion- photography- whether domestic remedies had been exhausted

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The Second Applicant was photgraphed in the grounds of a private clinic where she was receiving treatment for bulimia and alcoholism. Her picture appeared in various newspapers together with details of the treatment she was receiving and information concerning the private lives of both applicants. The PCC upheld complaints against the newspapers for invasion of privacy. Proceedings for breach of confidence were commenced against friends of the applicants who were believed to be the source of the disclosures, and an injunction obtained by consent. The applicants brought no domestic proceedings against the newspapers but complained to the Commission of a breach of their right to respect for private and family life under Article 8 of the Convention and the right to an effective remedy under Article 13.


Whether the applicants had exhausted their domestic remedies prior to making their complaint to the European Commission.


That the applicants had a reasonable prospect of success under national law in establishing that the newspapers had acted in breach of confidence. They should therefore have submitted their claim to the national authorities for determination. Having failed to exhaust their domestic remedies, the application was declared inadmissible.


This well-known case shows how far, in the European Commision’s eyes, English law had come by 1995 in the development of the law of confidence to protect personal privacy. It reversed an earlier finding of the Commission in Winer v UK (1986) that failure to take a breach of confidence action did not constitute a failure to exhaust domestic remedies in view of the then uncertainty as to the precise scope and extent of that remedy. The Government’s argument that the domestic system as a whole provided adequate protection for private and family and struck an appropriate balance between those rights under Article 8 and the rights of the media under Article 10, were not tested. However, the Commission would not exclude the possibility that the absence of an actionable remedy in confidence, on the facts of this case, could have amounted to a breach of Article 8.