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.”