30 July 2021 - Article
The media regularly publish articles that portray a private individuals’ LGBTQ+ status as a ‘story’; the fact of their sexual orientation itself is often considered a news-worthy angle. As such, LGBTQ+ families and individuals are significantly more likely to have greater online and offline personal security concerns than heterosexual individuals, whether as potential targets of discrimination, hate crime, or harassment from others who are intolerant of the LGBTQ+ community.
We explore below some key questions on how your LGBTQ+ status and information concerning your private home and family life is afforded protection under English law.
Is my LGBTQ+ status private information?
- Yes, it can be. You or your partner’s sexual orientation and sexual life is protected by Article 8 of the European Convention on Human Rights (‘ECHR’) as part of your ‘private life’.1 The extent of prior public knowledge of your sexuality can be a relevant factor in establishing a complaint for misuse of your private information against a media organisation. However, even though your LGBTQ+ status is already in the public domain amongst, for example, very close friends, a fresh publication of private information, may still amount to misuse of your right to privacy.
- There have been numerous examples over the years of celebrities who have said they were forced into co-operating with stories revealing their sexuality because they were effectively strong armed by the press and felt that they had no option but to do so. It is clear that pressure of that kind is wrong and unless there is a clear public interest in revealing someone’s sexual orientation it is likely to be unlawful.
- Whilst in the UK we celebrate our diversity that is not the case everywhere in the world, and there may be cultural or personal safety reasons why you may want to protect your LGBTQ+ status from public disclosure. In that case, if someone threatens to tell your family or friends when you do not want them to do so, that can be a criminal offence.
Is my LGBTQ+ status protected under data protection legislation?
- Information relevant to diversity issues, such as an individual’s sexual orientation, as well as information about religious or philosophical beliefs, racial or ethnic origin and information about health, falls into a restricted category under the General Data Protection Regulation 2016/679 (‘GDPR’), namely, special category data. This category includes personal data which either reveals or generally concerns a person’s sexual orientation.
- According to the Information Commissioners’ Office (‘ICO’), this means that if organisations (such as employers or publishers) have inferred or guessed details about you, this data itself may count as special category data. ICO guidance states that it depends on how certain the inference is, and whether the organisation is deliberately drawing that inference.
- The consequence of sexual orientation existing as special category data under the GDPR is that organisations must always ensure that their processing of such data is generally lawful, fair, and transparent. For organisations to ensure that the processing is lawful, they will need to show a proper basis for processing such as obtaining your explicit consent.
- Importantly, under the GDPR the information itself which is being processed about you must be accurate. Under the GDPR you have the right to rectify, erase or object to the processing of that data.
What about information concerning a personal relationship?
- Individuals have a reasonable expectation of privacy in respect of that which takes place within their personal relationship. The law affords privacy to this category of information whether the relationship is one of marriage, co-habitation, or a love affair. The expectation of privacy resides in both the details of your private relationship, and also the fact that there is or was a relationship at all.
- It is a well-established principle under English law that “kiss and tell” stories, which do no more than satisfy readers’ curiosity about the private lives of other persons, however well-known to the public, do not serve any legally recognised public interest.
Can the media publish information concerning my private family life without my consent?
- The tabloid press especially, often want to add ‘colour’ to articles with details about your family and lifestyle – even concerning private details of your relationship or sexual orientation. It is therefore unsurprising that some prefer to be selective in their choice of whom to reveal their LGBTQ+ status to, whether that be close family, trusted friends, colleagues, or others with a similar status. As you are entitled to object to publication of information about your private family life and home, this is best done before publication to avoid intrusive articles.
- The mere fact that a person wishes to publish an account of their own life, or of episodes within it, does not provide a sufficient entitlement where to do so would engage the Article 8 right to privacy of some other person(s) who does not consent. For example, if after a relationship ends one party wants the media to publish information about that relationship, you can take steps to prevent the publication if you do not consent. If the information is already published, you can seek removal of the publication, and compensation in respect of any invasion to your privacy.
- Rugby star Gareth Thomas said that he felt forced to announce his HIV status after the media threatened to disclose it, and a journalist even told his parents, who had not previously known of his diagnosis. Thomas chose to take control by using his own public profile to denounce the media organisation and has since championed a new role in telling the real story of living with HIV. Whilst his response won him many fans, any threat to disclose private information of this kind is highly likely to be unlawful.
For more information, please contact one of the media and reputation team.