Privacy: the way ahead? Part 1 – Hugh Tomlinson QC

The Prime Minister has said that he is “uneasy” about the development of a privacy law by judges based on the European Convention when this should be a matter for parliament.  In our contribution to the continuing debate on this issue we are re-posting this [update - three part!] discussion on the history and future of privacy law from Inforrm’s Blog.

Introduction

The “law of privacy” has been developed by the English Courts over the past decade. It is a common law development based on case law going back to the mid nineteenth century. But the pace of development has accelerated over recent years. The decisive factor has been the Human Rights Act 1998. In this area the Act has had “horizontal effect” – it operates in cases between two private parties. The action for breach of confidence has been transformed – almost beyond recognition.

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Silence please: A Facebook contempt of court – allegedly

A juror has found herself facing contempt of court charges, it being alleged that she communicated on Facebook with a defendant who had already been acquitted.

These types of proceedings can have human rights implications in two ways: Article 6, providing the right to a fair trial can be infringed upon by improper communicaton by jurors, and to a lesser extent, Article 10, which provides the right to freedom of expression may be engaged. As Article 10 includes a large number of circumstances where freedom of expression may be lawfully restricted, raising freedom of expression arguments to challenge the bringing of contempt proceedings would be very unlikely to succeed in these circumstances.

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Wrongs and rights, more wrangles

[Updated] When blogging about the Great Strasbourg Debate, Adam Wagner recently reflected that he and I are”good cop, bad cop”. No prizes for guessing who plays which role.

Anyway, for what it’s worth, here are a few pensées on the recent news that the Daily Telegraph is backing a reform campaign (see Adam’s post on this). Or rather, let’s start with Charles Darwin, who observed that the human animal is capable of continual extension in the objects of his “social instincts and sympathies” from the time when he had regard only for himself and his kin:

… later, he came to regard more and more ‘not only the welfare, but the happiness of all his fellowmen’, [then] ‘his sympathies became more tender and widely diffused, extending to men of all races, to the imbecile, maimed, and other useless members of society, and finally to the lower animals.

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Luck, human rights and the lottery winning rapist

Iorworth HOARE v the United Kingdom – 16261/08 [2011] ECHR 722 (12 April 2011) – Read decision

Potential future US president Donald Trump once said that “Everything in life is luck“. Sometimes a case arises from such an unlikely factual scenario that it raises questions about the relationship between justice, fairness and luck. This is such a case.

Iorworth Hoare was convicted 1989 for attempted rape. He was a serial sex offender, so was sentenced to life imprisonment. As life in prison does not usually mean actual life in prison, he was released on 31 March 2005. In what could be considered a not quite minor reversal of Hoare’s deservedly poor fortune up to that point, in 2004, while on day release, he bought a National Lottery ticket, and won £7m. Home Office rules allowed prisoners in open conditions to play the lottery.

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Albie Sachs – start with the issues, forget the parties

Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14 – read judgment

Costs again, I am afraid, and how to make sure that ordinary people can litigate important cases without being stifled by a huge costs bill if they lose.

I have a certain amount of “form” for it on this blog, but it is important stuff. It is worth seeing where we have got to, and measuring that progress against the response to the same problem from an avowedly constitutional court, that of South Africa.

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Ban on religious couple adopting?.. On the naughty step

Human rights and discrimination law are often criticised in the press. Sometimes the criticisms are justified, but the level of anger which a system of universal rights can generate is sometimes surprising. Unfortunately, some of that anger is caused by inaccurate reporting of judgments.

In yesterday’s Telegraph online, Cristina Odone blogged on a recent “scandal” relating to Mr Justice Mostyn’s request to carry out his responsibilities as a duty judge in Tenerife. I will leave comment on the main story to Charon QC, save to say that Odone uses the story as a means of judge-bashing, a sport which is currently popular in the press and even with politicians. “Who”, asks Odone channeling public anger, “do these judges think they are?” Moreover,

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Doctors not entitled to be judged by independent panel

R (on the application of Rajiv Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970 (Admin) Judgment of Mr Justice Blair given on 15 April 2011 – Read judgment

This claim for judicial review is the latest skirmish in The Wars of the HC [90] 9 Succession between doctors and NHS trusts about what procedural safeguards they are entitled to if investigated, suspended or dismissed for misconduct since the introduction of Maintaining High Professional Standards in the Modern NHS (MPHS) in 2005.

It is also a blow for those who believe that professionals facing serious allegations that may have adverse consequences for their ability to practise in their chosen field should be entitled to be judged by a panel independent of their employer.

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What can we do about foreign criminals “using family rights to dodge justice”?

The Telegraph has launched a campaign to “Stop foreign criminals using ‘family rights’ to dodge justice“. The perceived inability of judges to deport foreign criminals as a result of the European Convention on Human Rights, and in particular the right to family life, is one of the most commonly heard criticisms of human rights law. 

In an editorial yesterday, the Telegraph argued that the Human Rights Act has become “a means of undermining public safety, not of helping to protect it.” The newspaper claims that last year 200 foreign convicts avoided deportation by citing the right to family life”, which is “an absurd state of affairs”.

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A privacy injunction binding on the whole world

OPQ v BJM [2011] EWHC 1059 (QB – Read judgment

The case of OPQ v BJM addresses one of the most difficult practical issues in privacy law and adopts a novel solution.  Eady J granted a “contra mundum” injunction – that is, one binding on the whole world – in an ordinary “blackmail” privacy case.   This means that, although a “final judgment” will be entered, the injunction continues to bind the press and other third parties. 

The case has attracted considerable media criticism, for example in the “Daily Mail” which, in a front page story tells its readers: “TV Star’s Shame Hushed up for Ever” (incidentally, the reference to a “TV Star” seems, at first sight, to breach terms of the instruction across the top and bottom of the judgment which is, presumably, part of the court’s order: “Publication of any report as to the subject-matter of these proceedings or the identity of the Claimant is limited to what is contained in this judgment“).

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Roll up, roll up!

Someone pointed out to me yesterday that our blog roll, that is our list of links to other sites, had disappeared. To my horror, they were right, and to my double horror, it turned out that the list of links was woefully inadequate. 

So, the much-improved list is back, a bit lower down on the right. And below is a list with some short descriptions of the links. I have tried to limit the list to sites relevant to legal blogging and (to a lesser extent, because there are so many) human rights: for a much better roundup of the state of legal blogging in the UK, please read the almost impossibly comprehensive UK Blawg Roundup #6 by Brian Inkster.

Also, if you think you or someone else should be on this list, please let me know via the contact tab above. And the next #Lawblogs event is on 19 May at 6:30pm at the Law Society – details this week on how to reserve your place.

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Gagging on privacy

When the prime minister criticises judges, he tends to speak from his gut. The prospect of prisoners being given the vote by European judges makes him feel “physically sick”. And now, he is “little uneasy” about the rise of “a sort of privacy law without Parliament saying so“. 

David Cameron’s use of visceral language may reflect what many in the general public (as well as PR man Max Clifford) are feeling about the issue of wide-ranging injunctions granted by courts, seemingly all the time, to prevent salacious details of celebrities’ private lives being revealed. The latest involves a former big brother contestant’s alleged affair with a married Premier League footballer.

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Climate Camp protesters did not threaten breach of the peace, says High Court

R (Moos and Anor) v The Commissioner of the Police of the Metropolis [2011] EWHC 957 (Admin) – Read Judgment

The High Court has decided that the actions of police in “kettling” climate change protestors during the G20 summit were unlawful.

In the aftermath of the global credit crunch, the second G20 Summit, which was to commence on 2 April 2009, was an obvious target of public frustration and anger in respect of a range of economic and social issues. Thus on 1 April, two large demonstrations took place in the City of London. One was staged near the Bank of England, directed primarily at the (mis)management of the world’s financial markets by banks such as the Royal Bank of Scotland. The other was set up as a “Climate Camp” outside the Carbon Exchange Building in Bishopsgate, and was directed at environmental concerns. Continue reading

Hyped up fuss

This has been an interesting week for the continuing “debate” over the future of the European Court of Human Rights. Stay tuned for an explanation of the quotation marks.

First, Dominic Raab MP has released a pamphlet with the think-tank CIVITAS entitled Strasbourg in the Dock. Raab, a former lawyer, has been a vocal opponent of the European Court of Human Right as well as the Human Rights Act. The pamphlet can be read here and the press release and summary can be found here. He finds some of the European judges are “woefully lacking in experience” and, as a consequence, “are undermining the credibility and value of the Court“.

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Council disregards new equality duties in terminating free legal services

Rahman, R (on the application of Birmingham City Council) [2011] EWHC 944 (Admin) (31st March 2011) – read judgment

The Prime Minister recently called upon immigrant communities to integrate more fully in British Society, criticising in particular those who fail to learn English.

But three longstanding residents of Birmingham who communicate poorly in English and rely upon legal entitlement advice centres to provide services in their mother tongue, have successfully argued that the Defendant Council unlawfully failed to discharge its Public Sector Equality Duty in ceasing to fund the centres. Two further Claimants, with disabilities, also succeeded in their challenge to the Council’s decision to cease funding another centre that was providing free assistance in welfare benefit appeals.

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Admin court grabs bull by the horns

R (on the application of K and AC Jackson and Son) v DEFRA – read judgment.

An interesting ruling in the Administrative Court this week touches on some issues fundamental to public law – the extent to which “macro” policy (such as EC law) should trump principles of good administration; the role of factual evidence in judicial review proceedings, and the connection between public law wrongs and liability in tort.

It all started with Boxster the pedigree bull and notices issued by DEFRA which sealed his fate, or at least appeared to do so when his owners received them in April and July 2010. They were directed to arrange  the slaughter of the animal as a result of a positive bovine tuberculosis (bTB) test that had been carried out by DEFRA technicians earlier in the year. The notices of intended slaughter were issued under paragraph 4 of the Tuberculosis (England) Order 2007, an Order made under powers contained in the Animal Health Act 1981. Continue reading