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
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.
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.