Privacy law: there’s no need for “clarification”

by Carl Gardner on August 18, 2010

Following on from my post the other day about privacy and the notorious “back door”, I’m surprised Lord McNally has been taken in sufficiently to propose new privacy legislation to “clarify” the law and remove some of its dangerous and onerous aspects, to use his words. He obviously wants privacy protection watered down.

I explained yesterday at the Guardian’s Comment is Free why I think this contradicts his party’s stance on civil liberties and human rights in other fields, and why I’m opposed:

To understand what’s at stake here, we need to notice the types of cases that are actually causing concern in press circles. They aren’t those involving politics, corruption or public money. On the contrary, they more often involve celebrity, sport and sex … If it’s true that privacy law has begun to prevent such exposures then that should be reassuring rather than dangerous. The fact that it didn’t do so in Mosley’s case or John Terry’s ought to make people think before concluding that those stealthy privacy judges have gone too far.

Fans of the Human Rights Act used to berate the previous Labour government for any rhetoric suggesting it might row back on the Act to any extent – but it never actually amended it to weaken any of the rights in the way Lord McNally wants to do with privacy. Strange that a Liberal Democrat, so many of whom normally defend the HRA and judges unconditionally, should be so eager to check them in this instance. Are the tabloids in charge of the government?

{ 6 comments… read them below or add one }

1 Alistair August 18, 2010 at 14:30

I enjoyed your article, and the companion blog on the Guardian website.

At Liberty Central, you wrote that ‘it’s sometimes claimed that the development of this relatively new privacy law could inhibit investigative journalism and the exposure of important public scandals – such as MPs’ expenses. But where’s the evidence for this claim?’.

The point I make is by no means a new one, and perhaps you’ve countered it in the past, but it seems to me that serious investigative journalism does not sell, unless the revelations are of a comparable magnitude to those involved in the expenses scandal. Even in the case of the expenses scandal, the Telegraph’s information leaked rapidly onto the internet, and was always in the evening papers or the editions of the next day. I would question, therefore, how many people chose to read the Telegraph, rather than their usual paper, during that month, and, therefore, how much the Telegraph gained. I know very little about the newspaper business, but serious broadsheets seem rather unprofitable already. Certainly, the Independent has not made a profit for many years, and even the Evening Standard, hardly a broadsheet, was floundering until recently. Given that information discovered by the broadsheets will be disseminated ever more rapidly, for free, as more and more people turn to informal sources of news on the internet, it would seem that the incentives to engage in investigative journalism are weakening.

In light of this, given that investigative journalism is undoubtedly desirable, should we not permit the press to sustain its broadsheets with the profits from celebrity gossip in the tabloids, as is currently the case? Any limitation on the disclosure of celebrities’ private lives, therefore, represents a financial attack on investigative journalism. Whilst I would not advocate an absolute right to publish, it does seem that, on these grounds, our privacy law should be lightened a little.

2 James Medhurst August 18, 2010 at 17:34

Carl, I am struggling to reconcile your stance about this and your stance on Proposition 8. In both cases, we have some fairly woolly constitutional principles trying to resolve difficult moral issues on which many people disagree and for which there are many shades of grey. Why is resolution through the courts appropriate in one case but democratically-shaped legislation necessary in the other?

3 Carl Gardner August 18, 2010 at 18:09

Thanks, Alistair. But mightn’t you by the same logic say that we should encourage things like Page 3? I love newspapers but wouldn’t champion them regardless of their content.

I’m a bit unconvinced of the conventional wisdom about why newspapers are struggling. Of course I’m no expert in media markets but I notice that newspapers are adopting a variety of strategies from becoming a leading international cross-media brand (Guardian) to maintaining resolutely serious content (FT) to offering paid-for online content (FT, Times). They’re not all assuming downmarket gossip is the way to go.

I suspect the TV is what’s really affected newspapers, and that the internet is much more an opportunity for them than a threat, enabling them to publish a continuous edition on all sorts of platforms. I think there may be too many national newspapers in the UK, and that at some point paying for online (or downloaded or printed-out) content may work in some form – perhaps membership or something similar, perhaps (don’t tell them!) by requiring bloggers like me to pay (fairly small) sums to offer our readers free links through to their stories.

I also think, though (call me a romantic idealist if you like) that newspapers’ problem is that they’re not as good as they could be, and that what they need to do is raise their game. What the things we now call newspapers can do better than other media is offer really good writing, mostly in the form of opinion and analysis, and uncover serious stories (rather than “break” them fast or cover them live, which TV and radio can do better). I reckon newspapers should invest far more in those things – and that every penny spent on paparazzi is money diverted from where it should be put. Investigative journalism is, I think, the future, not the past. I think newspapers need to collectively get out from behind their desks, get talking to people instead of reading press releases, and get covering real social happenings (courts, the NHS, schools, consumer affairs… and especially local government) in much finer grain and much closer to the readers.

I think privacy law actually helps newspapers get to where they need to go.

4 Carl Gardner August 18, 2010 at 18:35

Gosh, James. is that my petard? Seriously, though, I’m not sure my position is as contradictory as all that.

I do generally speaking believe in political solutions to social problems, rather than judicial ones, which is one reason I’m such a fan of the British constitutional model as opposed to the American one. I certainly wouldn’t take the stance that it’s better that privacy v. free speech issues be resolved by judges than by Parliament, and my complaint isn’t that it’s wrong in principle for McNally to want to legislate in this area. I wouldn’t want the HRA to be entrenched, and I could be perfectly happy with a privacy law, depending on its content.

But it seems to me that the HRA is a political, democratic, legislative solution to the privacy vs. free speech question; and on the merits I think it’s not a bad one as things stand. I certainly don’t think you can say the judges are doing anything Parliament didn’t intend, and on the merits I think the results the legislation is delivering are decent ones.

So I’m just disagreeing with Lord McNally on the merits, really – I accept he’s going the right way about getting what he wants, and wouldn’t want to prevent him doing so by protecting the status quo from legislative change.

Smoking might be another example. I’m seriously glad we’re not stuck with an ancient, entrenched “right to smoke” that can be enforced judicially regardless of public opinion. And while I disagree with those smokers who are unhappy with what they see as the tyranny of the smoking ban, I’d have sympathy with them if non-smokers were trying to convert the smoking ban into an entrenched guarantee.

I think the sad thing about California is that both sides are trying to achieve their social aim by achieving entrenched constitutional rights, on one side by court action and on the other by plebiscite.

Do you think I’ve de-fused the petard?

5 James Medhurst August 19, 2010 at 17:12

I was not trying to catch you out. I am genuinely interested in the question of how constitutional rights are given effect, perhaps more so than either of the two substantive issues that you have discussed.

In the early days of privacy, judges took a conservative approach which can be seen in cases such as Theakston and A v B, in which there was a narrow definition of behaviour that can be considered private – if you walk out of a brothel on to a public street, you do not expect your actions to be kept secret. Also, there was a strong emphasis on the importance of section 12 so that interference with free speech had to be justified ahead of interference with privacy.

I am not aware of any Strasbourg jurisprudence that suggests that the above approach was wrong but it has now been replaced with a whole new framework which defines private behaviour widely and gives little or no effect to section 12. Even if we are generous and say that Parliament has not been overruled, this is certainly judge-made law in the sense that many alternative solutions could have been reached and there has been no scrutiny of the one selected.

My view is that, in cases where there is neither an English common law tradition nor ECHR case law to support a wide interpretation, the Human Rights Act should be interpreted narrowly. Otherwise, there is a danger that, if Parliament acts to restrict an interpretation that it does not accept, this will automatically struck down based on authorities reached before Parliament had even stated its position.

In any event, although I largely support a law of privacy, there are a number of areas in which clarification is required. For example, if a politician had an affair, having made public statements in favour of “family values”, I would want to be confident that this would be considered to be in the public interest. In particular, I would want to be sure that he could not obtain an injunction to prevent both publication and, in effect, scrutiny of the decision via open justice.

6 Joseph K. August 19, 2010 at 18:53

James, Parliament gave very few guidelines as to the extent the ECHR was to be interpreted. The Courts took initially took a narrow approach, until Campbell, when in a split decision the HoL ruled in her favour on one aspect (the photograph) of her case. This decision was delivered six months or so before the ECtHR decision in Von Hannover. This has lead to an academic if not actual conflict in the application of a privacy law. With Campbell not going quite as far as Von Hanover, for a more up to date overview I recommend OGB (the final case in the Douglas saga)
With little Parliamentary guidance the courts are only giving effect to s2 and 6 of the HRA. If there was legislation then the courts would obviously have to take account of s3 and interpret the legislation as far as is possible in line with the ECHR.
The problem with legislation would be that to be effective it would either have to be drawn so tightly as to stifle many of the tights in Article 10. Alternatively it would have to be wide enough to be adaptable to many situations, in which case the courts would continue in their constitutional function and interpret it along the lines of the ECtHR as they now do. (s2 and 6 rearing their ugly head again) As mentioned in a previous post LNS (Terry) shows a slightly different approach to privacy under Article 8 (and s12)

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