2011 may be remembered as the year of Article 8. The public may not realise it, but the two major news stories of this year have had at their core the 8th article of the European Convention on Human Rights, the right to privacy and family life. And without this controversial law, the phone-hacking scandal may never have been exposed.
First came the super-injunctions scandal, in which the public, egged on by the popular press, became enraged at sportsmen using expensive privacy injunctions to keep details of their alleged bad behaviour out of the news. That scandal has now been replaced by a much bigger one, relating to illegal phone hacking. The affair has already led to the demise of the News of the World.
As the human rights organisation Liberty have pointed out, the newspaper was never a fan of New Labour’s Human Rights Act. Amongst other things, it fought an expensive and partially successful privacy battle against Max Mosley over claims that he slept with prostitutes in a “sick Nazi orgy“. It has always been suspected that the tabloid press’s almost universal antipathy towards the 1998 Act, which in theory at least should be popular as it protects citizens against nasty state intrusion, was inspired by the fear that the privacy rights it bolstered, despite the competing right to freedom of expression, would prevent them doing their jobs. And now, with some irony, it is a tabloid newspaper and not a public authority which may represent the 1998 Act’s most high-profile scalp.
To explain how human rights played its part in destroying NOTW, it necessary to examine the history of the Regulation of Investigatory Powers Act 2000 (known as RIPA), under which the phone hackers have been and probably will be prosecuted.
Prior to 2000, there was no right of redress for an individual whose communications had been intercepted on the non-public side of the communications network. The problem with the Interception of Communications Act 1985 was that it only regulated the public communications system. Crucially, this did not include email, voicemail or even cordless telephones. As sometimes happens, technological advances had outpaced the law.
It was another unpopular human rights institution, the European Court of Human Rights, which raised the alarm. In 1997, Strasbourg court was critical of UK interception law in the case of Halford v The United Kingdom (20605/92)  ECHR 32. Halford, an Assistant Chief Constable with the Merseyside Police had taken her employer to an Industrial Tribunal claiming sex discrimination. She alleged that calls made from her home and office phones had been hacked into by the police looking for information to be used against her in the case.
Whilst Halford could not show an interference with Article 8, the right to privacy, she did win on article 13, the right to an effective remedy. The court ruled:
the Government have conceded in relation to Article 8 of the Convention… there was no provision in domestic law to regulate interceptions of telephone calls made on internal communications systems operated by public authorities, such as the Merseyside police. The applicant was therefore unable to seek relief at national level in relation to her complaint concerning her office telephones.
In the consultation paper which preceded the 2000 Act, the then Home Secretary Jack Straw said:
This revolution in communications technology is one of the imperatives for change in the law. But so too is the need to protect human rights – this has been uppermost in our minds in devising these proposals. Disproportionate, or unfettered, use of interception can have consequences for the rights of individuals.
The government also proposed, in a direct response to Halford v UK, that workplace surveillance
needs to be regulated by law, in a way which ensures that the rights of employees are respected in circumstances where they have a reasonable expectation of privacy.
The result was RIPA. This modernised interception law both for public authorities who wanted to intercept communications lawfully and private individuals who would be prevented from doing so without consent. Section 1 made it illegal for any person intentionally and without lawful authority to intercept any transmission on a public (s.1(1)) or private (s.1(2)) communication whilst it is being transmitted. A person guilty of an offence under either provision would be liable for imprisonment of up to two years or a fine or both (s.1(7)).
Whilst the law may have changed in spite of the Human Rights Act, it is notable that in the United States, where there is no constitutionally enshrined right to privacy, private phone hacking is not as strictly regulated.
So, in a way it was the Human Rights Act wot won a right of redress for the general public, including Milly Dowler’s parents, Gordon Brown, the families of injured and killed troops and the countless others whose voicemails and emails were allegedly hacked into. The prime minister has announced an inquiry into media standards; one positive outcome may be less partial and mischievous misreporting of human rights law.
It is unsurprising that the phone hacking scandal only ignited the public imagination when it became clear that it wasn’t just celebrities who were being hacked. But amidst all the tremendous heat and light which the scandal is generating, will the much-maligned Human Rights Act receive the credit it deserves?
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