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.
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3 May 2011 by Adam Wagner
Update – apologies for the earlier confusion. The details below are correct and confirmed.
The second #lawblogs event will be held on 19 May 2011 at 6pm. The Law Society at 113 Chancery Lane have kindly agreed to host the event.
To reserve your place, send an email to lawblogsevent@gmail.com with the subject heading “Legal blogging event” and your full name only in the text. Only one place can be reserved per person. Space is limited so please email as soon as possible if you want to attend. You can also follow updates and live tweets from the event on Twitter via our new account at @legalblogging.
Like the “Future of Legal Blogging“, but on a larger scale, the event will be a panel based discussion of the past, present and future of legal blogging, tweeting and journalism, followed of course by drinks and nibbles. The speakers will be:
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3 May 2011 by Melina Padron
It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.
by Melinda Padron
In the news
It can safely be said that the topic of “super injunctions” has received a lot of media coverage, perhaps second only to the royal wedding.
Firstly the outrage seen in tabloid newspapers and news broadcasts alike was caused by the two injunctions which gagged the media from reporting on the extra marital affairs of an actor and of a footballer. Then adding to the controversy was the decision of the former “gagger” Andrew Marr to break the terms of his own injunction and reveal himself as being responsible from preventing the reporting of his own extra marital affair.
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3 May 2011 by Rosalind English
In a modern liberal democracy we take for granted the fact that laws apply to all individuals and are enforced by the courts without special consideration of religious beliefs they may happen to have.
But for a while at least there was a very real danger of the dissolution of the divide between private orthodoxy and public principle following the widespread invocation of Article 9 in the courts. This came to a head in the furore over the former Archbishop of Canterbury’s intervention in the MacFarlane v Relate case, provoking some very sharp words from Lord Justice Laws. Although religious groups continue to rattle their sabres, a recent ruling from the Charity Tribunal suggests that the right to religion is losing its edge somewhat on the litigious battlefield. Does this mark a trend away from making concessions to the devout?
We posted previously on the somewhat convoluted history of Catholic Care v Charity Commission for England and Wales. Essentially the Charity wished to legitimise its policy of excluding same sex couples from its adoption services by seeking permission from the Charity Commission to amend its objects of association. They sought thereby to a statutory exception to the general prohibition on discrimination in the Equality Act 2010.
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3 May 2011 by Adam Wagner
The New York Times reports that after years of promising leads gone cold, the final piece of evidence which led to Osama Bin Laden was found by interrogating detainees in Guantanamo Bay, Cuba. Given the rough interrogation techniques which were in use at the prison camp, the killing has reopened the debate over torture, and whether it is ever justified.
Blogger David Allen Green, amongst others, asks whether the Bin Laden scenario may amount to an exception to the “otherwise absolute rule” that torture is wrong. I would like to pose a slightly different question: on the basis of current UK law, would it have been lawful for UK authorities to use information obtained under torture to capture or kill a known terrorist?
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2 May 2011 by Adam Wagner
I argued last summer that rights campaigners were approaching the end of the age of terrorism, with economic concerns taking centre stage. The death of Bin Laden, just under a decade since the September 11 terrorist attacks, may ultimately be a historical marker of that shift in focus.
It is coincidental that Bin Laden’s death was announced on the British May Day bank holiday, traditionally a period of economic protests and celebration of the labour movement. But that coincidence does serve to highlight two different aspects of universal rights protections: to put it crudely, the protection of people we do and people we don’t like.
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2 May 2011 by Guest Contributor
This is Part 2 of a three part series which originally appeared on Inforrm’s Blog. Part 1 can be read here and Part 3 is coming tomorrow.
The “new law of privacy” has not been uncontroversial. Over the past week the press has complained bitterly about “gagging orders” and “judge made law”. These criticisms are not new. More than four years ago, with characteristic restraint, the commentator Melanie Phillips described the process of the development of privacy law in these terms:
“Driven by a deep loathing of the popular press, the judges have long been itching to bring in a privacy law by the back door. Thus free speech is to be made conditional on the prejudices of the judiciary …” (Melanie Phillips, “The law of human wrongs”, Daily Mail, 6 December 2006)
Her editor at the Mail, Paul Dacre, has been equally firm in his views:
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29 April 2011 by Guest Contributor
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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28 April 2011 by Isabel McArdle
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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28 April 2011 by Rosalind English
[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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27 April 2011 by Adam Wagner
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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27 April 2011 by David Hart KC
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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26 April 2011 by Adam Wagner
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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26 April 2011 by Martin Downs
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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25 April 2011 by Adam Wagner
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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