Privacy – the way ahead? Part 3 – Options for the Future – Hugh Tomlinson QC

4 May 2011 by Guest Contributor

This is Part 3 of a three-part series which originally appeared on Inforrm’s Blog. Part 1 can be read here and Part 2 here.

There are at least four possible “ways forward” for the new law of privacy which has been developed by the courts over the past decade and which has, at least from the point of view of sections of the media, been very controversial. These four possibilities are as follows:

(1) Active steps could be taken to abolish the law of privacy and return to the pre-Human Rights Act position.

(2) The current “judge made” law of privacy could be replaced by a new “statutory tort” of invasion of privacy.

(3) A special “privacy regime” for the media could be established under a statutory regulator.

(4) “Steady as she goes” – the law of privacy could be left to develop in the current way – by the judges on the basis of the Article 8 and Article 10 case law.

Each of these possibilities gives rise to different issues and potential difficulties.

Abolition of the Law of Privacy

The law of privacy has been developed by the judges as part of the common law and the common law can be replaced by statute. A simple one clause Abolition of Privacy Bill: “The tort of misuse of private information is hereby abolished” might be thought to be sufficient.

Unfortunately, things are a bit more complicated than that. The new law of privacy has been developed as a result of duty placed on the courts to act compatibly with convention rights imposed by section 6 of the Human Rights Act. So it would be necessary to amend that section as well – perhaps by the introduction of Lord Wakeham’s almost forgotten proposal (which involved excluding the application of section 6 in disputes between two private parties).

However, these steps would, in turn, risk placing the United Kingdom in breach of its positive obligations under Article 8 of the European Convention on Human Rights to protect privacy against media intrusion. It would, in turn, lead to adverse findings in Strasbourg and place the United Kingdom under an obligation in international law to re-introduce a law of privacy. In order to escape from this obligation it would be necessary to denounce the Convention and withdraw from the Council of Europe. As adherence to the Convention is a condition of EU membership it would also be necessary to leave the EU. These extreme steps may be popular with certain sections of the media but are unlikely to be practical politics in the foreseeable future and I will not consider them further. Outright abrogation of the law of privacy is not practical.

It is also difficult to see how a new “British Bill of Rights” would assist those who wish to abrogate the law of privacy. There are two points. First, simple repeal of the Human Rights Act would not, of itself, undo the developments in the common law which it inspired. It has been repeatedly emphasised that the basic values of the European Convention are the same of those of the common law. The common law has developed a law of privacy without a Human Rights Act in New Zealand, some Australian states and parts of Canada. It is unlikely to turn back in England without statutory intervention. Second, if the United Kingdom is to act consistently with its obligations under the European Convention Rights any British Bill of Rights could remove rights from the Convention: in the jargon, it cannot be “Convention minus” it must either replicate the Convention or be “Convention plus”.

Critics of the new law of privacy sometimes talk of a “recalibration” of the Human Rights Act in favour of the media. This would involve an attempt to give Article 10 priority over Article 8 in media cases. It would, however, be inconsistent with the approach of the Strasbourg court. A statutory amendment which gave actual priority to freedom of expression in certain situations would be incompatible with Convention rights and would be likely to constitute a violation of Article 8 when applied in specific cases. Once again, the only way in which such a “recalibration” could effectively be carried out is if the United Kingdom were to renounce the Convention.

A Statutory Tort

The second possibility is the introduction of a statutory tort – a course favoured by a number of official inquiries bodies in the 1990s and the early 2000s (see the second post in this series) – presents no such practical difficulties. This approach has been taken in a number of different common law jurisdictions. Statutory torts of privacy have been introduced in four provinces of Canada. The Australian Law Commission has recommended the introduction of a statutory cause of action for a serious invasion of privacy containing a non-exhaustive list of the types of invasion which fall within the cause of action. It was suggested that in order to establish liability a claim would have to show:

(a) A reasonable expectation of privacy; and

(b) The act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities (See Australian Law Reform Commission, “For Your Information: Australian Privacy Law and Practice”, Report 108, May 2008, Recommendations 74-1 and 74-2, p.2584).

The Hong Kong Law Reform Commission proposed the introduction of a tort of invasion of privacy in the following terms:

“any person who, without justification, intrudes upon the solitude or seclusion of another or into his private affairs or concerns in circumstances where the latter has a reasonable expectation of privacy should be liable under the law of tort if the intrusion is seriously offensive or objectionable to a reasonable person.” (HKLRC Report, Civil Liability for Invasion of Privacy, 9 December 2004).

A statutory tort of this form would be unlikely to cause difficulties with Article 8 and the Convention. The United Kingdom’s positive obligation would be discharged by its introduction. The Article 8 rights of private parties would be protected by means of civil claims under this tort. The advantages of a new statutory tort are that it would enable clearer boundaries to be defined (although some flexibility would, of course, have to be retained). It would also give the privacy law the democratic legitimacy which the new judge made law of privacy is said to lack. It would, however, not alter the essential rules of the game: the courts would still be required to balance privacy against freedom of expression on the basis of “public interest” considerations.

However, as noted in Part 2, the Home Affairs Select Committee on Culture Media and Sport in its 2010 report, reached the conclusion that “for now” matters relating to privacy should be determined by the common law rather than set out in a statute. This was also the view of the Government and – certainly until recently – of a substantial proportion (although not all) of the media. Despite Mr Cameron’s recent comments it seems unlikely that there will be any political will to take this course and it is unlikely that such a tort will be enacted in the near future.

A Statutory Regulator

The third option – the establishment of a statutory regulator – is potentially the most radical. Such a regulator could take a wide variety of forms. The most cautious would simply be to replace the PCC with a statutory body – Ofpress – performing functions similar to those performed by Ofcom in relation to the broadcast media. This may or may not command greater public confidence but would not, of itself, affect the application of the new law of privacy to the press.

More radically, the new body could be given an “exclusive jurisdiction” – subject to appropriate appeal rights – to deal with privacy complaints against the press. It could be given powers to award compensation, order the publication of apologies or corrections and grant injunctions. Such a body could form part of the statutory tribunal system – with members from a list nominated by the media and other groups and a legally qualified chair. Tribunals have more informal procedures than the ordinary courts and less draconian costs regimes. The potential attractions for the media are obvious: less cost and a specialist tribunal. However, there are also obvious disadvantages – it seems likely that more people would be encouraged to make complaints. The “privacy code” imposed by a statutory regulator would have to be complied with – the “naming and shaming” by the PCC would be replaced by effective sanctions.

“Steady as she goes”

The most straightforward approach is, of course, do nothing. In other words, let the judges continue the development of the law of privacy on the basis of Articles 8 and 10. This course has the advantage of requiring no Parliamentary time or difficult drafting. It is nevertheless unsatisfactory because it means that the issues arising will not be the subject of proper public debate. The “democratic deficit” will remain.

Furthermore, the potential developments based on the Strasbourg case law under Article 8 of the European Convention on Human Rights are radical in nature. This case law is developing at a rapid pace and, on the basis of the current approach of the English Courts, it will have to be “integrated” into the new law of privacy. Let me give three examples. First, the Court of Human Rights has, consistently, over recent years held that the publication of photographs taken in public places is an interference with Article 8 rights which requires “public interest” justification. Although in Von Hannover v Germany ((2004) 40 EHRR 1) there was an element of harassment, a series of subsequent cases have found violations resulting from the publication of single photographs, often in the context of criminal investigations or charges (see eg Gourgenidze v Georgia Judgment of 17 October 2006). The fact that a photograph has been previously published will not, of itself, justify its republication (Hachette Filipacchi v France Judgment of 14 June 2007). Second, the Court has extended the protection of Article 8 to the mere taking of photographs – without their publication (Reklos v Greece Judgment of 15 January 2009). Third, it is now clear that the positive obligation to protect private life under Article 8 includes an obligation to provide appropriate levels of compensation for “outrageous abuses of press freedom” in publishing private information such that the victim’s distress is properly compensated and the press are deterred from future breaches (Armonienė v. Lithuania, Judgment of 25 November 2008).

In the absence of clearly defined domestic statutory rules and on the basis of the current approach to Strasbourg case law, the English Courts will be obliged to “absorb” these developments in the new law of privacy. Whether or not such developments of the law of privacy are thought to be desirable – doubtless there are radical differences of view on this subject – it is disturbing if they become part of domestic law without public debate via Strasbourg.

It is not necessary to adopt Lord Hoffmann’s contention that human rights are national in application (in his April 2009 lecture The Universality of Human Rights) to feel disquiet about the abdication of responsibility for a key area of domestic law to judges from 47 different legal traditions, deciding issues which arise in very different contexts from that faced in the English media. Unfortunately, if Parliament will not legislate and the Supreme Court will not take on the responsibility of developing a “domestic human rights law” distinct from that of the Strasbourg court this is the only remaining alternative.

Conclusion

The new law of privacy has come a long way in a short time. Many issues remain unresolved or only partially clear. What is clear is that kissing and telling and “public photography” have become a lot more legally hazardous. The law of privacy is slowly having an impact on the staple fare of the British tabloid reader. We are gradually moving from a position where anything can be published unless it is forbidden to the opposite – a position where nothing about an identifiable individual can be published unless it can be justified. Under the influence of human rights case law from Strasbourg we are moving slowly but inescapably towards the stricter privacy protection of French or Italian law.

I made similar observations to those in the last paragraph in a lecture in 2009. Paul Dacre quoted them in his 2009 “Society of Editors” lecture and said that they “should chill us all”. Chilling or not, they are I believe accurate. Furthermore, such developments are not out of line with the views of the majority of the public which approves of clear rules being imposed on the media in relation to the publication of private information (see the 2010 Reuters Report, “Privacy Probity and the Public Interest”, discussed by us here).

The alternatives are stark. Assuming that the United Kingdom remains party to the European Convention on Human Rights, the only alternative to abdicating responsibility for the development of privacy law to the Strasbourg judges is for the press and Parliament finally to accept that privacy is a proper subject for legislation. A statutory tort of privacy would enable parliament, after due public debate, to give guidance to the courts on how the balance between privacy and expression should be resolved. A statutory regulator would have the legitimacy and the powers which the PCC lacks and would serve the interest of both public and media by providing quick and effective resolution of complaints. The public, through its democratic institutions, needs to act to provide proper and effective protection for both privacy and freedom of expression. This is, I believe, the only principled “way ahead” for the new law of privacy.

This post originally appeared on Inforrm’s Blog and is reproduced with permission and thanks. Part 1 can be read here and part 2 here
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