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Where now for a law of privacy in England and Wales?
The row over court privacy rulings has come to a head in the past few days – as politicians used parliamentary privilege to name Ryan Giggs as the footballer at the centre of one injunction, and to reveal details of another injunction concerning former RBS boss Sir Fred Goodwin. However, the High Court has rejected attempts to overturn the injunction concerning Ryan Giggs – despite his name being published following MP John Hemming’s intervention in Parliament.
David Cameron has said privacy rulings affecting newspapers were “unsustainable” and unfair on the press and the law had to “catch up with how people consume media today” . He has apparently written to Mr Whittingdale and the chairman of the justice select committee, Lib Dem MP Sir Alan Beith, to ask them to suggest members for a new joint committee of MPs and peers, to consider the issue more carefully.
There are currently 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 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) “Primum non nocere” – 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. 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 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. This 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 might 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. of the law of privacy is not practical.
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 – presents no such practical difficulties. 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. 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, 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.
It is envisaged that the introduction of such a law would improve the ‘rule of law’, by enhancing access to justice. Currently, it is said that the present furore over superinjunctions is one in the eye for some London firms of celebrity lawyers, who have made large sums out of their new tools of “reputation management”. As a pioneer of privacy injunctions – Schillings obtained a trendsetting order in 2004 for model Naomi Campbell – the firm has not been short of new clients or referrals from media advisers. It insists it acts only on clients’ instructions and even after John Terry’s injunction was overturned last year, the firm suffered no decline in celebrities seeking gagging orders. In both the Giggs and Trafigura cases, the injunctions were destroyed by a combination of old and new forces. British politicians using the ancient powers of parliamentary privilege, combined with thousands of tweeters, often sitting at foreign-based computers and invulnerable to orders of British judges.
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.
Primum non nocere
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.
As Carl Gardner notes on his blog (http://www.headoflegal.com/),
“There’s nothing wrong with the privacy law Parliament enacted in the Human Rights Act 1998, and which the judges are loyally applying – except that redtop newspapers want to breach and destroy it in their own commercial interests, and that many internet users have allowed themselves to be persuaded to flout it by a one-sided, self-serving and ill-informed media onslaught. I find it astonishing that, against the background of the News of The World phone hacking scandal, so many people swallow the claim that it’s judges who are out of control. As Alastair Campbell has implied in what he’s tweeted, what’s happened today is no victory for free speech, but for the worst of British journalism.”
Free speech on the US internet?
This year, makers of the Firefox, Internet Explorer and Safari Web browsers have all made tools within their browsers that let users indicate they don’t want to be tracked. But tracking companies aren’t required to honour those messages. Both Facebook and Google fighting two online-privacy bills that are moving through the California legislature. Both bills were approved by the Judiciary Committee, but they face strong opposition from some big players in the state. Google Inc. and Facebook Inc. are among dozens of companies and trade groups opposing at least one of the bills.
One of the bills, a “do not track” proposal introduced by State Sen. Alan Lowenthal, would require companies to let people opt out of having their online data collected. The other, by State Sen. Ellen Corbett, would require social-networking sites to keep users’ information private by default and to remove personally identifying information if requested.
The bills are evidence of growing interest in privacy legislation, which is also being debated at the federal level. Last month, Sens. John Kerry (D., Mass.) and John McCain (R., Ariz.) proposed legislation that would create a “privacy bill of rights” that would let people block information from being shared and access personally identifiable information about themselves.
The California bills are the latest in a series of moves by the state to confront privacy concerns more aggressively than the federal government has thus far. The state already allows residents to get access to some of the data companies have on them, for example.
Privacy advocates have praised the general intent of the California bills – giving consumers more access to their information and more control over it. But even supporters of the ideas have said there are a few problems. The bill from Sen. Corbett, for example, would allow parents to request the removal of a child’s personally identifiable information as long as the child was under 18. Proving that someone is a child’s parent or guardian would be extremely difficult, and removing teens’ information would be problematic, Mr. Brookman argues that teenagers would therefore actually have First Amendment rights.
Finally. as with other Internet privacy legislation, there’s always the question of whether state law will offend the U.S. Constitution’s Commerce Clause, which among other things prevents states from putting an undue burden on interstate commerce. Committee analysis of both bills argues that the burdens are minimal and outweighed by the benefits, but opponents disagree.
How the U.S. treats privacy continues to attact worldwide attention. U.S. President Barack Obama has signed into law bipartisan legislation which will protect authors and journalists from libel lawsuits filed abroad. The Act “ Securing the Protection of our Enduring and Established Constitutional Heritage” (SPEECH) prohibits US courts from enforcing foreign libel judgments against US defendants that are inconsistent with First Amendment rules which protect free speech in the country. It intends to curb libel tourism, or the practice of filing lawsuits in countries with harsh libel laws. The legislation is being viewed as specifically aimed at insulating American journalists, authors and academicians from Britian’s restrictive libel laws.
Charlotte Harris on Question Time discussing types of injunction and parliamentary privilege
Reputation management is a topic discussed at the BPP Legal Awareness Society, in relation to “technology and the media”. It has been in the general news recently, as well as the specialist press. Legal tweeters have been discussing it in great detail, including the effect of international law (US SPEECH, US Communications Act and the European Convention of Human Rights) as well as domestic law on what can be legitimately reported. It has been a tough time for traditional professional journalists too, as well as the parties involved. The lawyers have worked very hard in avoiding becoming the news story, which is said to be ‘the first rule of journalism'; whether they have succeeded (with the antics of Carter Ruck LLP over Trafigura in the past, and Schillings over CTB and Glencore) is a different matter.
Question Time is a tough gig for anyone. Charlotte Harris, a reputation management partner from Mischon de Reya LLP, faced questions inevitably on many media issues which had surfaced during this week.
The questions are difficult, but Charlotte clearly represented the law as it currently stands. For some reason, the whole issue has raised a lot of emotions about the privacy legislation, and the relationship between the legislature, executive and judiciary; and, equally worryingly, the relationship between the general public and lawyers.
1. Did John Henning abuse parliamentary privilege?
Last Friday saw the publication of Lord Neuberger’s report on “Super Injunctions, Anonymised Injunctions and Open Justice”.
This Report arguably could not come at a more sensitive time as more and more celebrities are requesting injunctions, so the story goes, and court orders are being flouted on Twitter and by MPs hiding behind parliamentary privilege.
Bloggers and users of social networking sites, such as Twitter, are being seen as a problem that “add to the difficulties of enforcement” of court orders. Lord Neuberger said “modern technology is totally out of control… Anybody can put anything on it.” The Report goes on to consider the issue of parliamentary privilege and is somewhat critical of MPs who use parliamentary privilege to flout court orders however, the Report does not appear to recommend any change to the law on parliamentary privilege. Lord Neuberger said the law on parliamentary privilege is “astonishingly unclear” and asked whether it was a “good idea” for lawmakers to be “flouting a court order just because they disagree”. A vast majority of people have viewed that John Hemming MP did “flout” the law; parliamentary privilege is said to be defeated by malice, so it is imperative that John Hemming did not act with malice in making his brief remark in the lower House. There is a sentiment which many people believe that John Hemming MP did flout the law, and Charlotte Harris did make this opinion, in keeping with the heads of the Judiciary, very clear.
2. Are superinjunctions are a ‘secret justice’?
David Cameron has accused judges of making privacy law without Parliamentary authority. The aforementioned judicial report on media gagging orders conceded there has been an increase in U.K. courts granting anonymity orders blocking the media from naming people involved in lawsuits over news stories. According Lord Chief Justice Igor Judge at a recent press conference , the English law on privacy comes predominantly from the Human Rights Act [1998] which Parliament passed.
A superinjunction is an injunction which nobody is known about, such as Trafigura. Charlotte Harris has never been involved in a superinjunction. The central point is that superinjunctions are extremely uncommon, and Charlotte Harris made this central point clearly. Harris is completely correct to distinguish between normal injunctions, anonymised injunctions and superinjunctions. Senior U.K. judges have dismissed criticism over media restrictions, saying only two so-called super-injunctions were granted since January 2010, and neither are in force at the moment.
Interesting links: Schillings becoming the story
Injunction publicity backfires on celebrity law firm : http://www.guardian.co.uk/law/2011/may/24/injunction-publicity-backfires-law-firm
Go here
Trafigura and parliament
Trafigura gag attempt unites house in protest : http://www.guardian.co.uk/media/2009/oct/13/trafigura-carter-ruck-gag
Go here
There may be trouble ahead…
“Everyone knows that this is the footballer accused of using the courts to keep allegations of a sexual affair secret. But we weren’t supposed to tell you that…,” said the Herald’s front page defiantly. This item of legislation could be problematic for the Scottish Herald, however:
(source: http://www.legislation.gov.uk/ukpga/1982/27/section/18)
18Enforcement of U.K. judgments in other parts of U.K.
(1)In relation to any judgment to which this section applies—
(a)Schedule 6 shall have effect for the purpose of enabling any money provisions contained in the judgment to be enforced in a part of the United Kingdom other than the part in which the judgment was given; and
(b)Schedule 7 shall have effect for the purpose of enabling any non-money provisions so contained to be so enforced.
(2)In this section “judgment” means any of the following (references to the giving of a judgment being construed accordingly)—
(a)any judgment or order (by whatever name called) given or made by a court of law in the United Kingdom;
(b)any judgment or order not within paragraph (a) which has been entered in England and Wales or Northern Ireland in the High Court or a county court;
(c)any document which in Scotland has been registered for execution in the Books of Council and Session or in the sheriff court books kept for any sheriffdom;
(d)any award or order made by a tribunal in any part of the United Kingdom which is enforceable in that part without an order of a court of law;
(e)an arbitration award which has become enforceable in the part of the United Kingdom in which it was given in the same manner as a judgment given by a court of law in that part;
and, subject to the following provisions of this section, this section applies to all such judgments.
The Streisand Effect and *that* footballer
This graph shows the spike which happened for the footballer at the centre of the Twitter legal battle which happened at Friday 3pm.
The plot can be done easily from Trendistic.
The Streisand effect is a primarily online phenomenon in which an attempt to hide or remove an item of information has the unintended consequence of publicising the information more widely. The effect is named after American entertainer Barbra Streisand, whose attempt in 2003 to suppress photographs of her residence inadvertently generated further publicity. Similar attempts have been made, for example, in cases of attempted suppression of files and websites. Instead of being suppressed, the information receives extensive publicity, often being widely mirrored across the Internet or distributed on file-sharing networks.
Mike Masnick of Techdirt introduced the term after the singer and actress, citing privacy violations, unsuccessfully sued photographer Kenneth Adelman and Pictopia.com for US $50 million in an attempt to have an aerial photograph of her mansion removed from the publicly available collection of 12,000 California coastline photographs. Adelman said that he was photographing beachfront property to document coastal erosion. As a result of the case, public knowledge of the picture increased substantially; more than 420,000 people visited the site over the following month.
This issue has frustrated many organisations: when MI6 wanted to remove a list of its agents from the site cryptome.org, it was frustrated by the site’s American owner. The Church of Scientology has been similarly frustrated in its efforts to keep secret its “briefings”. When the British-based Internet Watch Foundation tried to ban the digitised cover of the German rock band Scorpions’ Virgin Killer album from the net, its attempts led to wider circulation of the image than would ever have happened otherwise.
