Privacy injunctions and secrecy – media intrusion and state surveillance

1 06 2011

The last few weeks have seen a powerful campaign against privacy injunctions – and anonymity orders generally – by a broad coalition of media interests and social media users.  Some of these campaigners have direct commercial interests in the continuing publication of “kiss n’ tell” stories whereas some just don’t like the idea of “gagging” of any kind.

There are those who believe that injunctions are hiding serious wrongdoing by the rich and powerful.  This last group includes many bloggers and twitterers, although not the national newspapers who know what the injunctions are about and but rarely challenge them in the courts.

All these “anti-anonymity” campaigners share an understandable distrust of secrecy and concealment.  This is often closely linked to a belief in freedom of information and to campaigns against state secrecy. The liberal left lines up with the “Sun” and the “Daily Mail” to attack “gagging” whether it is by the State or by celebrities.  “Spycatcher” is directly linked to the celebrity “super-injunction”.

But this link is, at best, a tenuous one.  The public judgments in privacy injunction cases – 18 are helpfully listed at para 2.27 of the Neuberger Report – show that public interest issues rarely arise.  The only “public interest” anonymity case usually cited is Trafigura – which was not a privacy case at all (it concerned a stolen privileged document).   When a credible public interest argument is raised in a privacy case, anonymity is usually refused.

The instinctive distrust of secrecy is a healthy one which is slowly spreading through our political culture.  It should not, however, blind us to the essential difference between state secrecy and private secrecy.   The former potentially serves to conceal the misdemeanours of public officials.  The latter protects the private spaces which individuals need to live and develop.  The former can damage democracy and accountability, the latter protects dignity and autonomy.

The importance of the distinction between the two types of secrecy can be seen by looking at another issue which unites many “anti-secrecy” campaigners: concerns about surveillance.  The use of CCTV or the tapping of telephones by Government and local authorities is another objectionable aspect of the “secret state” which is rightly seen as a threat to democracy and accountability.  Less concern is expressed about “private surveillance” and media intrusion although they have much in common.  In particular, supporters of state surveillance and media intrusion both run the same basic argument: “privacy doesn’t matter if you’ve got nothing to hide”.

A recent book by US privacy scholar Daniel Solove deals with the “nothing to hide” argument in the context of government intrusion into privacy.  His rebuttal is summarised in a recent article and is equally applicable to privacy intrusions by the media.  He points out that

The nothing-to-hide argument is everywhere. In Britain, for example, the government has installed millions of public-surveillance cameras in cities and towns, which are watched by officials via closed-circuit television. In a campaign slogan for the program, the government declares: “If you’ve got nothing to hide, you’ve got nothing to fear.” Variations of nothing-to-hide arguments frequently appear in blogs, letters to the editor, television news interviews, and other forums“.

He discusses a number of possible responses to the “nothing to hide” argument

“One can usually think of something that even the most open person would want to hide. As a commenter to my blog post noted, “If you have nothing to hide, then that quite literally means you are willing to let me photograph you naked? And I get full rights to that photograph—so I can show it to your neighbors?” The Canadian privacy expert David Flaherty expresses a similar idea when he argues: “There is no sentient human being in the Western world who has little or no regard for his or her personal privacy; those who would attempt such claims cannot withstand even a few minutes’ questioning about intimate aspects of their lives without capitulating to the intrusiveness of certain subject matters.””

Professor Solove draws attention, however, to the fact that such points only deal with the “nothing to hide” argument in its extreme form.   Even the most extreme advocates of government surveillance (or media freedom to publish private information) would recognise that certain areas are “off limits”.   The problem, he suggests, is that the “nothing to hide” argument views privacy as a form of secrecy whereas it needs to be understood as raising a number of related issues.  As recent English case law has pointed out – privacy is not just about secrets but also about harassment and intrusion.

When a newspaper intrudes into someone’s private space it is not in the position of the freedom of information campaigner who tracks down some hidden item of improper public expenditure or dubious decision making.   Rather its position is like that of the state official monitoring and recording the private telephone calls of citizens.

State snoopers, phone hackers, paparazzi photographers and dealers in kiss n’ tell stories are all in the same business: intrusion into the private lives of others.   State surveillance and media gathering of private information should both be viewed with the same deep suspicion.  Both require strong public interest justification.   When they invade privacy, the state and the media are on the same side.   Concerned citizens should, we suggest, be on the other: both forms of intrusion should be viewed with proper suspicion and should require cogent justification


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2 responses

2 06 2011
Andrew Scott

Enjoyed this piece. The distinction between personal private information and state information is an important one and derives from the base that the default position for private personal information is that it is for the individual to decide whom to share it with, whereas the default for state information is that it should be publicly available. In performing its tasks, the state acts as the agent of the wider citizenry (as principal). Hence, information collected by the state is held on ‘trust’ for the public, and so it can only withhold information on grounds that we collectively think appropriate.

I’m less sure about the position – that you seem to support – that was expressed by Eady and Tugendhat JJ in CTB regarding privacy and its coverage of both publication (maintaining secrets/confidentiality) and harassment and intrusion. Of course, privacy has both informational and substantive components. If someone hacks a phone or an email account or trespasses on my property or reads my letters or drills a hole in my wall to observe my private moments but then does nothing further with the information obtained, there is still an invasion of privacy – my substantive privacy.

However, my informational privacy is only breached if that person then communicates the information obtained more widely.

Importantly, the claim for misuse of private information is focused on informational privacy. It covers dissemination of private information, and also (blackmailing) threats to disseminate (on a quia timet basis). As Wainwright told us, though, we don’t have a general tort of invasion of privacy. We do have other means of restraining substantive breaches, eg the Protection for Harassment Act, trespass, perhaps intentional infliction of emotional distress and so on. I obviously haven’t seen the CTB injunction, but if it isn’t based on some other cause of action alongside the claim for misuse of private information then I don’t see how it can extend to preclude invasions/harassment. In any event, I don’t see how it can remain unaltered so as still to (notionally) maintain the anonymity of the claimant.

Conflation of the informational and substantive aspects of privacy breaches that occur together in many scenarios (eg photos obtained in harassing circumstances and then published) is a mistake. That error is at the root of the misgivings over von Hannover, in which case the Strasbourg judges said explicitly that they could not ignore the physical experiences of the applicant when considering the German law on publication. They should have done, and its to be hoped that that court corrects itself in VH no 2. If the same error has been made in CTB, then that’s disappointing.

None of this is to say that those holding injunctions to protect their privacy do not deserve or require protection also from physical invasions and harassment. Just that if such protection is to be afforded then the legal basis should be other than the claim for misuse. If the PTA provides that basis then great. In cases where it doesn’t apply, perhaps the courts should develop other causes on the basis of Art 8. Resurrecting the rule in W v D seems the obvious starting point.

2 06 2011
Media law mop up: Counting super injunctions; Twitter battles; and libel in the schoolyard | media law & ethics

[…] Inforrm>>Privacy injunctions and secrecy – media intrusion and state surveillance […]

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