Culture, Media and Sport Committee – Privacy Recommendations

Introduction

In an earlier post we provided an overview of the recent report of the House of Commons Select Committee on Culture, Media and Sport Committee in relation to Privacy libel and Press standards in general terms.  In this post we focus on the recommendations made in relation to privacy.

The Committee looked at a number of aspects including the history and operation of section 12 of the Human Rights Act and recent privacy cases. It also considered a huge amount of submissions and evidence about privacy mostly from the media themselves including four editors, Paul Dacre, Peter Hill, Alan Rusbridger, and Ian Hislop, but also from victims of the media such as Max Mosley and from lawyers and Judges.

A Statutory Tort?

As previously discussed (here) the Committee reached the conclusion that “for now” matters relating to privacy should be determined by the common law rather than set out in a statute.   The Committee concluded

We note, however, that the media industry itself is not united on the desirability, or otherwise, of privacy legislation, or how it might be drafted. Given the infinitely different circumstances which can arise in different cases, and the obligations of the Human Rights Act, judges would inevitably still exercise wide discretion. We conclude, therefore, that for now matters relating to privacy should continue to be determined according to common law, and the flexibility that permits, rather than set down in statute (para 67).

This reasoning is slightly difficult to follow.  The reason for a statutory tort is to define the “limits” of the wrong in terms that have been debated in Parliament and have democratic legitimacy.  There would, of course, be no difficulty in such a statute requiring judges to make a “case by case” analysis (indeed, this would be a necessary feature).   Too much weight appears to have been given to the views of the media.  On the one hand, they complain that the law of privacy is “judge made” and lacks democratic legitimacy.  On the other hand, they oppose Parliamentary intervention.   Their favoured position would, of course, be to have no privacy law.  If that cannot be achieved (as demonstrated in our earlier post here) then placing the law on a statutory footing appears to be the most sensible option.  It to be regretted that the Committee has resiled from the views of some of its predecessors on this point.

Section 12 of the Human Rights Act, Mr Justice Eady and “Fast Tracking”

The witnesses expressed different views on the effect of section 12.   The Committee decided that whilst it did ‘raise the bar’ for the requirements needed to restrain the press from publication, there was insufficient data to form a concluded view on its operation. The difficulty for the media submissions was that most if not all of the decision were dependent on the particulars fact of the case and were mostly devoid of any real public interest.

The Committee did not accept the view of Paul Dacre and others that privacy law has singlehandedly been developed by Mr Justice Eady. They said;

“We have received no evidence in this inquiry that the judgments of Mr Justice Eady in the area of privacy have departed from following the principles set out by the House of Lords and the European Court of Human Rights. While witnesses have criticised some of the judge’s individual decisions, they have praised others. If he, or indeed any other High Court judge, departed from these principles, we would expect the matter to be successfully appealed to a higher court. The focus on this one judge regarding the development of privacy law, however, is misplaced and risks distracting from the ongoing national debate on the relationship between freedom of speech and the individual’s right to privacy”

The Committee did however express understandable concern about the delay in the appeals from decisions in first instance whether to grant or refuse an interim injunction. These delays have taken place in many of the recent privacy and confidence actions, for example, Lord Browne v Associated Newspapers, Napier v Pressdram, and Cream Holdings v Banerjee.

Privacy Recommendation 1

The Committee recommended that;

“that the Ministry of Justice should seek to develop a fast-track appeal system where interim injunctions are concerned, in order to minimise the impact of delay on the media and the costs of a case, while at the same time taking account of the entitlement of the individual claimant seeking the protection of the courts.”

This recommendation is clearly sensible and there is a good reason for media appeals to be heard within 7 days of the original interim decision. Where the appeal is from a final decision for instance at trial, the delay point is less pressing and the fast-track system should not apply.

Mandatory Pre-publication Notification and Mosley

The Committee were plainly impressed by the evidence of Max Mosley, the personal effect on his life of the News of the World Story and his arguments for prior notification. Many representatives of the media asserted that this was the norm.

Mr Mosley summarised his position succinctly in a memorandum to the Select Committee:

“The case for prior notification is simple, logical and irrefutable:

— By definition, something ceases to be private if it becomes public.

— The law requires certain things to be kept private.

— The court has a duty to enforce the law.

— The court can only enforce the law if informed.

— It can only be informed by the aggrieved party.

— He can only inform the court if he knows.

— Therefore he must be notified before publication”

However, the Committee shied away from recommending that there should be a legal obligation on the ground that there would need to be a public interest exception and that this would be difficult to formulate.  However, they (inconsistently) went on to recommend make a recommendation as to the amendment of the PCC Code – subject to a “public interest” test which the PCC will be no better at formulating than the courts.

Privacy Recommendation 2

Instead the Committee recommended that the PCC should;

“amend the Code to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” test, and should provide guidance for journalists and editors on pre-notifying in the Editors’ Codebook”

It seems extremely unlikely that the PCC will change its rules in this way especially since such a move may well impact on the Max Mosley’s outstanding application in the European Court of Human Rights, where the media intend to make opposing the application and the Government will by now have filed its responses (we have asked the media representatives for copies of their submissions and have yet to receive a reply).  Nevertheless the recommendation is sound. Even where there is a public interest in play, it is simple for media to state what the factual interest is, for instance disclosure of a particular illegal conduct.

The Select Committee concluded;

“We have concluded that a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a “public interest” exception. Instead we believe that it would be appropriate to encourage editors and journalists to notify in advance the subject of a critical story or report by permitting courts to take account of any failure to notify when assessing damages in any subsequent proceedings for breach of Article 8″.

Privacy Recommendation 3

The Select Committee finally recommended that consideration should be given to amending the Civil Procedure Rules to make failure to pre-notify an aggravating factor in assessing damages in a breach of Article 8.

The sentiment behind this recommendation is understandable but is probably pointless.  First, when “privacy cases” are pleaded, a failure to pre-notify is always relied on as an “aggravating factor”.  Secondly, given the modest level of damages awards so far available – and the requirement that aggravated damages must be proportionate to  compensatory damages – it is hardly going to be sufficient for the tabloids to rethink their strategy when not notifying their targets.

Super Injunctions

The Committee discussed the injunction in the Trafigura case and recommended that the Parliamentary Papers Act 1840 be replaced with a clear and comprehensible modern statute.  They go on to recommend that

” a way is found to limit the use of super-injunctions as far as possible and to make it clear that they are not intended to fetter the fundamental rights of the press to report the proceedings of Parliament”

The freedom to report Parliamentary proceedings is, indeed, important – but Parliament must also guard against the use of its own proceedings to circumvent properly granted injunctions.   The Committee did not address this last concern.

Case Law: Hearing in Robert Dee v Telegraph Media Group

Although the Simon Singh appeal (see our posts here and here) was the most newsworthy libel case last week, another interesting matter was being dealt with in the Courts.  This was the defendant’s summary judgment application in the case of Robert Dee v Telegraph Media Group was heard on 24 and 25 February 2010 by Mrs Justice Sharp.  The story concerns a professional tennis player, Robert Dee (pictured) who had lost a lot of matches.  News stories about the case have been published in the Guardian and a wide range of international media.

The claim arose out of an article published on 23 April 2008 in the Daily Telegraph.  The paper published material on the front page and page 20 of the Sport section under the headings “World’s worst tennis pro wins at last” and “A British tennis sensation – the world’s worst”.  The story was repeated by a number of different media outlets and Mr Dee brought a number of claims, all of which apart from the Telegraph appear to have settled.

The claim form against the Telegraph was issued on 21 April 2009.  The claimant alleges that the words complained meant that:

“until his win at the Reus tournament near Barcelona, the Claimant had lost 54 consecutive professional matches during his three years on the professional tennis circuit, and had therefore proved himself to be the worst professional tennis player in the world.”

The Defence denied that either article is defamatory and advances substantive defences of justification and fair comment in relation to the following meanings:-

5.1.  The Claimant lost 54 consecutive matches in straight sets in tournaments on the international professional circuit; and/or

5.2.  The Claimant lost 54 consecutive matches in straight sets in tournaments that contribute to a player’s world ranking;

5.3.  In consequence, he merited being ranked or described as the world’s worst professional tennis player.”

On 17 December 2009, the Defendant applied for summary judgment on the basis that on the basis that the articles were not capable of being defamatory and, in any event, he had no real prospect of rebutting the justification and/or fair comment defences.   This is the Defendant’s Primary Skeleton Argument in support of its application for summary judgment and this is its Defendant’s Single Meaning Skeleton.  This is the Claimant’s Skeleton Argument in opposition to the application.

Any application for summary judgment in a libel case is difficult – because any seriously disputed issues of fact or meaning have to be left to the jury – nevertheless, the case is a remarkable one and it is not surprising that an application was made.

Mr David Price, Solicitor Advocate, for the Telegraph, argued that it was true that the claimant had lost 54 tennis matches in a row and the contention that he was “the world’s worst” was a value judgment.   He also pointed out that the claimant’s reliance only on the front page of the newspaper and not on the article in Sports Section was contrary to the principle in Charleston v News Group Newspapers Ltd ([1995] 2 AC 65) – that a claim for libel could not be founded on a headline or photograph in isolation from the related text.

Mr Dee’s counsel, Andrew Caldecott QC contended that

“The claimant has a serious and substantial complaint … The complaint in this action is that in the interests of entertaining readers he was wrongly branded as the world’s worst tennis professional, and his record and ranking were wholly misinterpreted on the front page of a national newspaper, which would have been widely read by his friends and acquaintances.”

In the course of argument Mrs Justice Sharp raised the question as to whether it was defamatory of someone at all to say that they are the “world’s worst tennis professional”.  Mr Caldecott’s response was that it is defamatory to hold a person up to “ridicule and contempt”.   He contended that the claimant had a “strong case which is entirely fit to go to trial”.

Judgment has been reserved and we will report on it when it is handed down.

Open Justice and Article 6 – General Principles

Introduction

Well before the implementation of the HRA, open justice was recognized as essential to ensure public scrutiny of the operation of the court system as well as provide information to the public (see  Scott v Scott [1913] AC 417).

The principle of “open justice” is a fundamental one which is deeply rooted in the common law and which is subject only to narrow exceptions. As Lord Diplock put it in Attorney General v Leveller Magazine Limited [1979] AC 440 at 450A to C.

“If the way that courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself, it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly.”

The principle has been reinforced by articles 6 and 10 of the Convention. As Lord Steyn said in the case of In Re S (A Child) (Identification: Restrictions on Publication [2005] 1 AC 593, para 15.

“under the ECHR there is a general and strong rule in favour of unrestricted publicity of any proceedings in a criminal trial … the common law has long adopted a similar approach”

The common law position was rationalized following the introduction of Civil Procedure Rules and the implementation of the HRA, where the court as a public authority has to act compatibly with convention right.

Exceptions To Open Justice

Article 6(1) expressly recognises that the press or public may be excluded from all or part of the trial. It provides;

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Furthermore the European Court has recognised in B v United Kingdom; P v United Kingdom that the Article 6 requirement to hold a public hearing was subject to exceptions  [2001] 2 FLR 261 . The court said:

“….the requirement to hold a public hearing is subject to exceptions. This is apparent from the text of Art 6(1) itself which contains the proviso that ‘the press and public may be excluded from all or part of the trial…. where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice’. Moreover, it is established in the Court’s case-law that, even in a criminal law context where there is a high expectation of publicity, it may on occasion be necessary under Art 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice …”

For the purpose of Article 6, a “determination” must in general be a final determination of a civil right or obligation or a criminal charge. Accordingly interim decisions in interim hearings will not be subject to the guarantees under Article 6. Although there is a general right to a public hearing this is therefore subject to exceptions and does not apply to interim hearings except where they finally determine the issue.

If the trial is held in private, there is an obligation to hand down a written judgment in public. However there may be exceptions where it is not possible to produce an anonymised or abridged version. Whether or not the hearing is in private, where a public judgment is being handed down it should avoid reference to the private/confidential material. This principle applies even where the court has declined to restrain the information so that it is for the defendant publisher to decide whether to publish and risk a claim in damages, otherwise the judgment would undermine any available remedy in damages.

Accordingly the default position is open justice in relation to the nature of hearings and public availability of court documents and documents referred to in court. The court may derogate from some or all these open justice principals where there is evidence justifying such a course of action. The exceptions to open justice principals include anonymising of proceedings, private hearings and withholding of documents from public inspection.

As the court made clear in Terry v Person Unknown [2010] EWHC 119 (QB), any application for such derogations should be supported by evidence in an application. Tugendhat said in the Terry case:

“Open justice is one of the oldest principles of English law, going back to before Magna Carta. It is now set out in CPR39, and in Art 6, in terms which it is unnecessary to repeat here…” [106]

He went on to point out

“There is of course an obvious difficulty in at the same time complying with the principle of open justice and giving an effective remedy for threatened misuse of private information. But as was stated in Re S, there is no presumptive priority between ECHR rights. That applies as much to tensions between Art 6 and Art 8 as it does to tensions between Art 8 and Art 10. Art 8 does not have a presumptive priority over Art 6 and open justice. Each derogation from Art 6 and open justice must be justified on the particular facts of the case, in accordance with the intense scrutiny required.” [108]

Freedom of Expression, Pornography and the Literary Heritage

In an interesting and potentially important new freedom of expression judgment the Court of Human Rights has held that, when a literary work becomes part of the “European cultural heritage” it will be a violation of Article 10 to ban its publication, however offensive it is to local sensibilities.  The case is the subject of a posting on the extremely useful ECHR blog here.

In the case of Akdaş v. Turkey (Judgment of 15 February 2010) the Court of Human Rights had to consider the banning in Turkey of the well known pornographic novel, Eleven Thousand Rods, by the symbolist poet, Guillaume Apollinaire.  The judgment is available only in French but there is a Press Release in English.   As accurately summarised in the Guardian piece on the case

The book details the erotic adventures of the debauched Romanian aristocrat Mony Vibescu and his fellow sybarites, containing graphic scenes of intercourse, sadomasochism, paedophilia, necrophilia, coprophilia and vampirism.

Apollonaire is said to have written it for the clandestine market when short of money and never acknowledged authorship.  It was banned in France until 1970 but has now been released in the prestigious “La Bibliothèque de la Pléiade”.  Mr Akdaş published a Turkish translation in 1999.  He was convicted under the Criminal Code for publishing obscene or immoral material liable to arouse and exploit sexual desire among the population.  He argued that the book was a work of fiction, using literary techniques such as exaggeration or metaphor, and that the postface to the edition in question was written by specialists in literary analysis. He added that the book did not contain any violent overtones and that the humorous and exaggerated nature of the text was more likely to extinguish sexual desire.  The Turkish Court ordered the seizure and destruction of all copies of the book was ordered and the applicant fined the equivalent of about  €1,100 euros.   The Court of Cassation quashed the part of the judgment concerning the order to destroy copies of the book but upheld the remainder of the order.

The case was considered by the Second Section of the Court of Human Rights.  It was not disputed that there had been an interference, that the interference had been prescribed by law and that it had pursued a legitimate aim, namely the protection of morals.  The Court accepted that the requirements of morals varied from time to time and from place to place, even within the same State. The national authorities were therefore in a better position than the international judge to give an opinion on the exact content of those requirements, as well as on the “necessity” of a “restriction” intended to satisfy them.  However, the Court noted that the book was by an internationally renowned author and in 1993 had been published in « La Pléiade » collection.   The central paragraphs of the short judgment are the following (in our translation)

29.   Although the Court, taking account of the relative character of moral conceptions in the European juridical space, accords a certain margin of appeciation to States in this area, in this particular case, we must not underestimate the importance of the passage of more than a century since the publication of the work in France, its publication in numerous countries in various languages, nor its recognition by entry into the “Pléiade” collection a dozen years before being seized in Turkey.

30.   The Court considers the breadth of this margin of appreciation, in other words the recognition given to the cultural, historical and religious singularities of member states of the Council of Europe  cannot go so far as to prevent public access in a particular language, in this case Turkish, to a work which forms part of the European cultural heritage”.

As a result, the application of the legislation in force at the time of the events had not been intended to satisfy a pressing social need. In addition, the heavy fine imposed and the seizure of copies of the book had not been proportionate to the legitimate aim pursued and had thus not been necessary in a democratic society, within the meaning of Article 10.  As a result, there had a violation of Article 10.

This conclusion has wide ranging implications.  Many readers of Eleven Thousand Rods will find the contents of the book highly offensive – as indeed did the French public at the time of its publication and for many decades later.   When the book was published in England in the 1970s whole chapters were deleted and replaced by short descriptions of the violent acts which were described.   The idea that, four decades later, any restriction on the publication anywhere within the Council of Europe States, whatever local sensibilities, is at first sight very surprising.  The notion of the “European literary heritage” is one which lacks clear boundaries – certainly in countries which do not have the benefit of the “Pléiade” collection.

The judgment does, however, show that contrary to the views of some English critics, the Court of Human Rights continues to take a robust view in “traditional freedom of expression” areas such as obscenity.

NZ Law Commission Report – Penalties and Remedies: Review of Privacy Law

The excellent Media Law Journal blog from New Zealand has alerted us to a new report from the New Zealand Law Commission “Invasion of Privacy: Penalties and Remedies: Stage 3 – NZLC R 113 (or here in HTML).  The second stage in this lengthy review of the Privacy Law was a paper on “Public Registers – NZLC R 101 (here in HTML).  The NZLC also produced an interesting “Study Paper” on “Privacy Concepts and Issues, NZLC SP19 and a number of “Issues papers”.

The report is a hefty 132 pages.  It  recommends legislation to provide for criminal offences and a right of civil action in relation to the use of visual surveillance, interception and tracking devices (Rs1 to 17).  The report also recommends some changes to the New Zealand Harassment Act 1997 so that it applies more clearly to instances in which surveillance is used for the purpose of harassment; some new offences targeting voyeurism; and some changes to the law governing surveillance by private investigators.

Like the recent House of Commons Select Committee (see our post here), the report recommends that

R28  The tort of invasion of privacy recognised in Hosking v Runting should be left to develop at common law. and

R29  Any recognition and development of a tort of intrusion into solitude, seclusion and private affairs should be left to the common law.

In Hosking v Runting ([2004] NZCA 34) the New Zealand Court of Appeal decided by a majority of 3:2 that there is a common law tort of invasion of privacy in New Zealand.  Its ingredients are:

(i) The existence of facts in respect of which there is a reasonable expectation of  privacy; and
(ii) Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.

The Report notes that, since 2004, there have only been three reported cases on the tort (see, in particular, Rogers v Television New Zealand Ltd [2008] 2 NZLR 78 (SC)). The Report’s conclusion on this point is explained in this way:

However, after careful deliberation we have decided that the tort should be left to develop at common law. The common law has the great advantage that in a fast-moving area judges can make informed decisions on actual cases as they arise. Privacy is particularly fact-specific. As has been said in the United Kingdom, each case requires an intense focus on the individual circumstances. The common law is well-suited to that task. The common law is also flexible, and can thus develop with the times. Statute creates a risk that what is enacted today may be out of date tomorrow. To avoid this dilemma, any privacy statute would have to be drafted in  open-ended terms, and might end up being little advance on the common law. (para 7.9).

They note that the Hosking tort (like the tort of “misuse of private information” in England and Wales) is confied to publicity of private facts and consider whether to recommend a statutory “intrusion tort”.  They conclude that they should not on the basis that

“the danger in codifying the intrusion tort would be that this could constrain and pre-empt aspects of the common law development of the publicity tort. They are part of one package. In the end, therefore, we have decided to leave the courts to determine whether there should be an intrusion tort, and if so what its ingredients should be. The view of most submitters was that the matter should be left to the courts”.

The common law in New Zealand has developed without the assistance of  anything equivalent to an Article 8 right – the New Zealand Bill of Rights Act contains no “right to privacy”.  It has been strongly influenced by US jurisprudence (for a discussion after the Hosking decision see, S Lulham, “What is, and what should be the extent of New Zealand’s new tort of breach of privacy?” [2005] Canter Law Rw 4).  Nevertheless, there are many points of contact with the English law and the Report is important reading for those interested in privacy law.

Opinion: “Privacy – the way ahead? Part 3 – Options for the Future”

This is the last part of three part post in which Hugh Tomlinson QC considers the future of the law of privacy in the UK.   In this Part he looks at the options for the future.

INTRODUCTION

There appear to be are at least four possible “ways forward” for the new law of privacy which, as I discussed in the first post in this series 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.  The possibilities seem to be to be as follows:

(1)    Active steps could be taken to abrogate the new law.

(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.

ABROGATION OF THE LAW OF PRIVACY

The law of privacy has been developed by the judges as part of the common law and, as all law students know, the common law can be abrogated by statute.  A simple one clause 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 “Bill of Rights and Responsibilities”, which is now apparently favoured by all the main parties, 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 inspired by the Act.  It has been repeatedly emphasised that the basic values of the Act 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 on Human Rights any Bill of Rights of Responsibilities cannot 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 a degree of priority over Article 8 in media cases.  This would, however, be inconsistent with the approach of the Strasbourg court.  A statutory amendment which gave 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 course has found favour in a number of parts of the common law world.  Statutory torts of privacy have been introduced in four provinces of Canada (Privacy Act 1996 RSBC c 373 (British Columbia), Privacy Act CCSM s P125 (Manitoba), Privacy Act 1978 PSS c P-24 (Saskatchewan), Privacy Act 1990 RSNL c P-22 (Newfoundland and Labrador)).   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 has, in this week’s 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 is also the view of the Government and of a sustantial proportion (although not all) of the media.   There is no 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 recently 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 arose 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 could be published unless it was forbidden to the opposite – 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 these observations in a lecture in 2009.  Paul Dacre quoted them  in his “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 recent 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.

Hugh Tomlinson QC, February 2010

An earlier version of this post was given as a Lecture at the “Times/Matrix Privacy Forum” in April 2009.

Libel Law – Singh Appeal Hearing

In an earlier post we looked at the case of British Chiropractic Association v Singh.  This was heard by the Court of Appeal on Tuesday 23 February and judgment was reserved.  The BCA Skeleton Argument can be found here (we would be delighted to post Mr Singh’s Skeleton Argument and other case papers if these are available).

As we have already mentioned, the legal issue in the case concerned the meaning of the words complained of and whether they were properly described as fact or comment.  It is not about the importance of scientific debate.   This point is not entirely clear from reading the discussions of the case by Mr Singh’s supporters.

For example, Jack of Kent’s blog post is entitled “A Good Day in Court”.  He reports that the BCA’s case “received a sustained battering” and that the judges all “made favourable references to the need for scientific debate”.    The blog describes the scene in the court room:

“There were the great and the good of the skeptic world: Wendy Grossman, Professor Richard Wiseman, Dr Evan Harris MP, and so on. The press bench was full, including Nick Cohen and Padraig Reidy; there were famous bloggers and activists, such as Crispian Jago and Alan Henness. And then there were dozens and dozens more, just coming in and crowding in at the back”.

Nevertheless, Jack of Kent provides a useful summary of the argument.  Unsurprisingly Mr Singh’s Counsel Ms Page QC argued that the words complained of were clearly comment – an evaluative judgment on a matter of public interest.  Jack of Kent (who, as he makes clear is biased as a supporter of Simon Singh) felt that Ms Page had not been thrown by any of the incisive questions.   He is of the view that the BCA’s Counsel, Ms Rogers QC, had a much harder time of things – describing various hostile but apparently irrelevant questions (“would happily promoting treatments which had not a jot of evidence be considered by your client to be defamatory?”).   He describes this exchange:

“[Ms Rogers QC] compared herself with the BCA, saying that if she was accused as a barrister of promoting a bogus case without a jot of evidence, it would be open to someone to verify whether there was any evidence.
This did not seem to go down well as a serious point.
We can tell whether a case is bogus, responded one judge, we are judges. We can evaluate whether there is an evidence, just as a scientist can evaluate whether there is evidence, and if a scientist says there is not a jot of evidence, surely he means there is not a jot of reliable evidence?”

Once again, the thrust of the questions is difficult to follow:  judges can evaluate the question as to whether a legal case is bogus and (if necessary with the help of expert evidence) can evaluate whether a scientific case is bogus – this kind of evaluation happens all the time the courts, for example in intellectual property cases.  However, none of this seems relevant to the issue of meaning.

Allen Green (aka Jack of Kent) has also popped up in the Lawyer with yet another discussion of the case (he has an interesting “Bad Law” column – the first instalment of which concerns sentencing remarks by Mrs Recorder Cherie Booth QC).

Meanwhile other commentators are linking the Singh case to the “silencing of science” and “libel tourism”.  For example, Sarah Boseley in the Guardian has written a piece under the title “Simon Singh and the silencing of scientists” which complains about companies from around the world using “trying to use England’s libel laws to quash academic critic”.   The BCA is not a “libel tourist” and Simon Singh is not an “academic critic”.  As we pointed out in our earlier post, the issue in the case is whether he made an allegation of bad faith against the BCA or whether he was just expressing an opinion.  If the latter then the BCA has no claim.  If the former, then he appears to accept that he has no defence.  It appears to us that the issue is simply: what did the words mean?  We will see, in due course, whether the Court of Appeal judges agree.

Opinion: “Privacy – the way ahead? Part 2 – Background to the New Law”

This is the second part of three part post in which Hugh Tomlinson QC considers the future of the law of privacy.  In this Part he looks at the background to the new law of privacy

INTRODUCTION

The “new law of privacy” has not been uncontroversial.  With characteristic restraint the commentator Melanie Phillips has described the process 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, was equally firm in his views:

“insidiously, the British Press is having a privacy law imposed on it, which – apart from allowing the corrupt and the crooked to sleep easily in their beds – is, I would argue, undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market” (Paul Dacre, Speech to Society of Editors, 9 November 2008, p.5).

He went on to say

“This law is not coming from Parliament – no, that would smack of democracy – but from the arrogant and amoral judgements – words I use very deliberately – of one man.  I am referring, of course, to Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places” (Ibid)

I will not discuss the merits of these criticisms.  I have already drawn attention in Part 1 to the point that Parliament knew what it was letting itself in for when the Human Rights Act was passed: no one who is familiar with the Parliamentary (and press) debates of time can be surprised by what has happened.  The personal criticism of Mr Justice Eady is also ill-conceived.  I also mentioned in Part 1 that he was not party to any of the major decisions which formed the new law – which were decisions of the Court of Appeal and the House of Lords.  The trial judge in Campbell v MGN was Mr Justice Morland since retired and in Douglas v Hello! Mr Justice Lindsay.

There is however a deeper point being made by the critics of privacy law: that generally accepted moral standards should determine the extent to which private information can be published.  This is a point on which different views may be expressed.   It is first convenient to look at the past.

PRIVACY REFORM PROPOSALS

The history of such proposals is quite well known.  Active consideration of the enactment of a privacy law goes back over 30 years. In July 1972 the Younger Committee  (Report of the Committee on Privacy, Cmnd. 5012, HMSO,1972) did not support the introduction of a tort of invasion of privacy, concluding that the word could not even be defined satisfactorily (Ibid, para 660).   It suggested that reliance should be placed on self-discipline by the media (Ibid, para 656.).

Self-discipline was, unfortunately, not exercised.  By the late 1980s public opinion polls suggested that a large majority of the public believed that the press intruded too much into the lives of public figures.  A Committee chaired by Sir David Calcutt QC (and including Messrs David Eady and Simon Jenkins) was established to investigate press behaviour in respect of personal privacy.  Its report was a compromise: it did not recommend a statutory tort of invasion of privacy but spelled out how the tort might work (Report of the Committee on Privacy and Related Matters, Cm. 1102, HMSO, 1990).  It proposed an improved form of self-regulation, replacing the Press Council by a new Press Complaints Commission.  This was given a probationary period of 18 months.  The Committee warned that it the PCC did not function properly during this period this would be a “clear sign that self-regulation cannot work effectively”.   If it did not then a statutory body with power to order publication of apologies, payment of compensation and to grant injunctions should be established. Mr David Mellor famously quipped that the press were “drinking in the Last Chance Saloon”.

In January 1993, Sir David Calcutt published a follow up report (Review of Press Self-Regulation (Cm 2135, 1993).   He concluded that self-regulation had failed.  He recommended that the PCC should be replaced by a statutory body and that the Government should give further consideration to a new tort of infringement of privacy.  In response, reports from the Lord Chancellor’s department (Joint Consultation Paper with the Scottish Office, Infringement of Privacy (HC 291-1, 1993)) and the National Heritage Select Committee  (Fourth Report, Privacy and Media Intrusion (1993)) supported the creation of a new tort of infringement of privacy.  Nothing was done: there is, apparently, no “last orders” at the “last chance saloon”, drinking can continue indefinitely.  Two years later, the Government published a further report suggesting that, in the light of further efforts in self-regulation and the continuing development of the law there was no need for legislation (Government Response to the National Heritage Select Committee, Privacy and Media Intrusion, Cmnd. 2918, 1995).

As already mentioned, the “privacy” issue caused considerable anxiety in media circles when the Human Rights Bill was before parliament: in addition to Lord Wakeham’s amendment, the press suggested a provision giving them immunity from the provisions of the Act or the removal of Article 8 from the incorporated rights.  Instead, the Government inserted section 12 of the Human Rights Act: this provides that the courts had to have “particular regard” to the right to freedom of expression and could not grant interim remedies unless satisfied that the applicant is “likely to establish that publication should not be allowed”.  In other words, it really does not do very much at all.

The enactment of the Human Rights Act did not conclude the “privacy debate”. In its 2003 report, “Privacy and Media Intrusion” (Fifth Report of Session 2002-2003, HC-458-I, 16 June 2003) the Culture, Media and Sport Committee concluded that

“we firmly recommend that the Government reconsider its position and bring forward legislative proposals to clarify the protection that individuals can expect from unwarranted intrusion by anyone – not the press alone – into their private lives.  This is necessary fully to satisfy the obligations upon the UK under the European Convention of Human Rights.  There should be full and wide consultation but in the end Parliament should be allowed to undertake its proper legislative role” (Ibid, para 111).

This recommendation was firmly rejected by the government which expressed the view that

“The weighing of competing rights in individual case is the quintessential task of the courts, not of Government or Parliament, Parliament should only intervene if there are signs that the courts are systematically striking the wrong balance; we believe there are no such signs.” (“Privacy and Media Intrusion”, The Government’s Response to the Fifth Report of the Culture Media and Sport Select Committee, Cm 5985, October 2003)

Put shortly, the Government favoured the very thing which has, in fact, happened: the development of privacy law by the Courts.

Four years letter, a differently constituted Culture, Media and Sport Committee in 2007 took a rather different view, now agreeing with the Government in opposing a privacy law:

“To draft a law defining a right to privacy which is both specific in its guidance but also flexible enough to apply fairly to each case which would be tested against it could be almost impossible.  Many people would not want to seek redress through the law, for reasons of cost and risk.  In any case, we are not persuaded that there is significant public support for a privacy law” (Seventh Report of Session 2006-07, HC 375, 11 July 2007, para 53).

The House of Commons Culture Media and Sport Committee ( again differently constituted ) has now returned to the topic less than three  years later.  The Committee in its 2010 Report (see our post here) concluded that it was not right, at this time, to legislate on privacy.  It recommended that the PCC should however amend its Code to include a requirement that journalists notify the subject of their articles prior to publication, subject to a “public interest” test. It also recommended that new statutory rules should provide for aggravated damages should be available where not prior notification is given to the target. Given that under section 12 of the Human Rights Act the Courts must have regard to any privacy code, such provisions together should have a significant effect.

CONCLUSION

As this brief history shows, although the views taken by the Government and Parliament have not always been consistent, in the end they have preferred to leave the thorny issue of privacy to the judges – to decide o n a case by case basis.  This has, however, not proved popular with the press.  In the final part of this post I will consider the possible “ways ahead” for privacy law.

Defamation Reform in Ireland

The Irish Republic is a common law jurisdiction with libel laws very similar to those in in England and Wales.  Those laws have now been reformed by the Defamation Act 2009 which came into force on 1 January 2010.  The reform has a long history, beginning with a 1988 report commissioned by the National Newspapers of Ireland “Press Freedom and Libel” (by Professor Kevin Boyle and Law Lecturer Maria McGonagle).   The Government did not introduce a Defamation Bill until 2006.

The provisions of the Defamation Act 2009 include the following:

• by section 6, a statutory definition of the tort of defamation in terms which closely reflect the common modernises the law;
• by section 11, a person has only one cause of action in respect of a multiple publication of a defamatory statement, but may obtain the leave of the court to bring more than one defamation action;
• by section 15, all previous defences to defamation actions are abolished (note it has been suggested by Eoin o’Dell of Cearta.ie that this might be inconsistent with the Constitution and the Convention)
• by sections 16, 17, 18, 19 and 20 it provides for defences of “truth”, “absolute privilege”, “qualified privilege”, “honest opinion”,
• by section 22 it provides for an “offer of amends” procedure;
• by section 24 it provides that a defendant may lead evidence of an offer of an apology in mitigation of damage;
• by section 26 it provides for a new defence of “fair and reasonable publication” on a matter in the public interest (modelled on the English Reynolds defence);
• by section 27 it provides for a defence of “innocent publication”;
• by section 28, it provides for a new remedy of a declaratory order – that a statement is defamatory, there is no defence and an apology and correction have been refused – the remedies in sections 30 and 33 can then be ordered;
• by section 30, it provides that a court may make a “correction” order – directing the publication of a correction by a defendant;
• by section 31, it deals with damages, setting out the factors to be taken into account when assessing general damages and
• by section 32 it deals with aggravated and punitive damages – the latter being recoverable in cases where the defendant knew that the statement was untrue or was reckless as whether it was true or untrue;
• by section 44, it gives statutory recognition to the Press Council

These provisions reflect many developments in the English law over the past two decades and preserve many of the features of the common law of defamation.   The excellent Cearta.ie blog has a post on the new act, with a self-explanatory title, “The Defamation Act is a welcome but imperfect reform for libel cases”. The blog has a number of other interesting posts on the Act – including this. The excellent blog Human Rights in Ireland also has a post about the Act here.

The Irish Act is not a radical measure but it shows that the common law can be “codified” and “clarified” in order to balance expression and reputational interests.  We will keep readers informed about developments in the way in which the Act is interpreted in the Irish courts.

Culture, Media and Sport Committee Report – privacy OK, defamation needs tweaking, PCC needs improving (again) and severe criticism of News Group over hacking allegations

The House of Commons Select Committee on Culture, Media and Sport has published its long awaited report on “Press standards, privacy and libel”.   This is 167 pages – the pdf is here – but it is more straightforward to browse the HTML version here.  Much of the press commentary so far has focussed on the findings relating to “phone hacking” by the News of the World”  – it is, for example, the front page story in the “Guardian”.

However, the aim of the report is said to be

“to arrive at recommendations that, if implemented, would help to restore the delicate balances associated with the freedom of the press”

The recommendations of the Select Committee are set out under five headings: Privacy and breach of confidence; Libel and press freedom; Costs; Press Standards, Self-Regulation of the Press.

In relation to “Privacy”, the Committee rejects legislation and mandatory pre-publication notification, however they do recommend that the PCC should amend its Code to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a ‘public interest’ test.  It also recommends that aggravated damages should be available where there has been no notification.  The Report rejects the repeated criticism of Eady J. and the overwhelming submissions from the media that the Human Rights Act  should be adjusted ( or recalibrated ) in favour of the media in relation to privacy.

In relation to the law of confidence and so-called super-injunctions , they recommend new and clearer legislation to ensuring the free reporting of parliament.

Under the “Libel” heading, the Committee rejects the idea of reversing the burden of proof in libel cases brought by individuals but suggests that, when corporations bring libel cases they should have the burden of proving falsity and/or rely on a claim in malicious falsehood.  In relation to “libel tourism” they recommend that more evidence is needed but suggested, in cases where the UK is not the primary domicile or place of business of the claimant or defendant, the claimant should face additional hurdles before being allowed to bring a case.  It is odd that they have ignored the views of Lord Hoffman

They also propose a year one limitation period for internet defamation cases.  They urge the Government to consult further, in particular over placing a broadened defence of ‘responsible journalism’ on a statutory footing.

On “Costs”, the Committee recommends that the recovery of success fees from the losing party should be limited to no more than 10%, and that After the Event Insurance premiums should be irrecoverable.

Under the heading of “Press Standards”, the Committee, unsuprisingly, concludes that in the case of the McCanns “self-regulation signally failed”.  In relation to the News of the World it “strongly condemns” the behaviour of the present and former of executives of News International

“which reinforces the widely held impression that the press generally regard themselves as unaccountable and that News International in particular has sought to conceal the truth about what really occurred“.

In relation to Press the PCC should be renamed the Press Complaints and Standards Commission, reflecting its role as a regulator, not just a complaints handling service, and that it should appoint a deputy director for standards. They recommend that the PCC should have the power to fine its members where it believes that the departure from the Code of Practice is serious enough to warrant a financial penalty, including, in the most serious of cases, suspending the printing of the offending publication for one issue.

The devil is in the detail and whatever the conflicting views of different parts of the media (most of whom assert that they welcome the report as vindicating their position) it is essential to focus and distinguish between specific proposals for necessary changes in law and areas where there are concerns but more evidence is needed.  In future posts we will look at the arguments and recommendations on a number of specific issues.  Overall, the Committee has put in a lot of work and gathered some interesting and useful evidence but the whole is less than the sum of the parts and there is a clear risk that, like many of its predecessors, this report will quickly be forgotten, the good ideas disappearing with the bad.