Privacy Law – In Need of a Legislative Broom?

From Outlaw 03/02/09:

Parliament will investigate privacy law in the UK and may give the law a 'nudge', Justice Minister Jack Straw has said. A select committee of MPs will look into how the law has developed and how it is being implemented by courts, he said.

How has the law developed? I can think of some fairly colourful responses to that. For the present, however, I think the following would all be particularly apt:

· Slowly  · Painfully  · Inconsistently  · Awkwardly

· Incoherently 

There are a bunch of other words I could include but a list has to stop somewhere. Of course, many of these descriptions are also applicable to how the law has been implemented by the courts.

“Historically, the UK has not had a law of privacy, but one has emerged in recent years that has combined confidentiality laws covering the exchange of information with human rights laws protecting the right to a private life.

Courts have ruled in several cases that the publication of information violates these laws, and
these judgments will form the basis of future rulings.

That case law was ferociously attacked last year by powerful Daily Mail editor Paul Dacre [in the aftermath of Mosley v NGN Ltd [2008] EWHC 1777] who condemned the fact that it had developed through the courts and not through Parliament.

Straw has told Parliament's Joint Committee on Human Rights, though, that a committee of MPs will look into the development of the law.”

Recent developments in privacy rights in the context of ‘celebrity newsgathering’ have illustrated that the law has now swung to opposite end of the spectrum whereby the courts have been inclined to attach more weight to the individual’s right to privacy than to the right to freedom of expression for the press. This change has happened relatively quickly: in 2002 both the Flitcroft and Theakston cases saw a ‘naming and shaming approach’ for celebrities caught in compromising situations robustly endorsed by the courts. Since Campbell and now Mosley, however, the approach has clearly changed.

The current test which evolved out the wealth of jurisprudence in this area essentially involves examining whether the individual had a reasonable expectation of privacy in all the material circumstances. If that is the case, there is then a need to move on to balance the right of privacy under Article 8 of the ECHR with the right to freedom of expression pursuant to Article 10. An inherent part of this balancing act is determining whether there is countervailing public interest that can justify the intrusion.

Mr Justice Eady has come in for a lot of ‘stick’ in recent times – not least in the aftermath of the Mosley decision. Eady J has had heard the majority of high-profile cases in this area and because of this, it’s no surprise that he was very much at target in Dacre’s scathing attack last year.

The Times notes how far-reaching Mr Justice Eady’s contributions to this area of law are perceived to be:

“Mr Dacre told the audience at the Society of Editors’ annual conference in Bristol that the judge’s “amoral” judgments, in this and other defamation and libel cases, were “inexorably and insidiously” imposing a privacy law on the press.”

Moreover, “[Dacre accused Eady J] of bringing in a privacy law by the back door: the judge, he said, had used the Human Rights Act against the age-old freedom of newspapers to expose moral shortcomings of people in high places.”

So what’s the Justice Minister’s take on privacy?

Again from the Times:

Lord Lester of Herne Hill, one of the Joint Committee members, asked Mr Straw where he stood on privacy: the Mail interview, Lord Lester said, gave the impression that Mr Straw would like to weaken the Human Rights Act, “so as to make it easier for the press to make unwarranted attacks on personal privacy”.

Straw did not say where he stood — other than backing the forthcoming privacy review. But he did indicate support for the Act’s critics. “Those of us keen to ensure that the legacy of the Human Rights Act continues and thrives need to be alive to that criticism — and respond to it,” he said.

The realisation of privacy rights under English law is essentially achieved via a blatant shoehorning of privacy rights into the law of breach of confidence. Have Parliament finally recognised the need for a legislative broom to sweep clean the detritus of confusion which plagues the law relating to privacy?

Without doubt, it’s high time for a review at the very least and considering afresh whether legislating is the way to go. Whether this leads to a ‘Privacy Act’, though, is another matter entirely. Ironically, this area of law has weathered greater uncertainty than it’s currently plagued with and it could be argued the courts are actually demonstrating a greater degree of creativity and recognition of wider societal issues when adjudicating than ever before. For instance, the case of David Murray v Big Pictures Limited [2008] EWCA Civ 446. involving photos taken of J.K. Rowling’s son as well as the application of the Harassment Act 1997 in respect of compromising photos published on an aggrieved former-lover’s Facebook profile illustrate that the jurisprudence is developing in a way that is factoring-in modern technologies and the privacy implications that the internet and social networking brings with it.  The equivalent could certainly not have been said in the early days of wiretapping by police nor in how the courts dealt with early forms of harassment via telephone.

Now, though, privacy issues seem to rank much higher on the list of priorities.  Currently, privacy concerns have been elevated to an all time high by virtue of the rise of the internet as a publishing medium, the Web 2.0 phenomenon and society’s voracious appetite for celebrity gossip which has fuelled the ever-more aggressive and intrusive behaviour of the press.  Also, in direct response to the Mosley case, perhaps it’s been recognised that the jurisprudence has developed in a direction which is now no longer deemed suitable and legislation is required to ‘nudge’ it back on track.

The use of the ‘legislative broom’ may help in certain areas to sweep clean and clear up the awkward uncertainty such as the apparent conflating of the right pursuant to Article 10 of freedom of expression with the ‘public interest defence’ in some judgements.  Whether privacy law which is more favourable to the press is the right approach to be taking going forwards, however, seems less clear.

In any event, the Times concludes: If legislation is mooted, then it will be an irony to think that Mr Justice Eady himself — when on the Calcutt committee that reported in 1990 on privacy — favoured a privacy law. The difference is that any new law would not be seeking to curb the press but to free it.