What becomes of Misuse of Private Information, the orphaned child? – Paul Wragg

26 05 2015

ChildHugh Tomlinson’s excellent post came as a welcome reassurance that the Misuse of Private Information (“MOPI”) tort should survive the proposed repeal of the Human Rights Act 1998 (“HRA”).  As he argues, MOPI is not dependent on its origins.  Yet MOPI is a child, with years of maturity still required, and one born of two parents (Articles 8 and 10 ECHR) with particular values, specifically that both are of equal status.  Once these parents are executed (for crimes they did not commit), MOPI can expect to be adopted by a very different set of parents, who are most unlikely to hold the same values. 

If the government does fulfil its manifesto promise of replacing the HRA then it is most likely stepfather free speech will not consider himself equal to stepmother privacy (who is bound to be a paler imitation of her former self, assuming she makes an appearance at all).  What safeguards are there that free speech considerations will not dominate MOPI’s development?  What will prevent the influence of privacy diminishing from now on?

Before continuing I should acknowledge the sentimentality that has already crept in to the analysis: it is highly questionable how equal the two rights presently are.  In a recent post I argued that MOPI leans generously toward press freedom.  Briefly, I attribute this to judicial treatment of the ‘ultimate balancing act’ and the broad interpretation of the term ‘public interest’.  It seems to me, judges do not ‘balance’ the strength of the privacy claim against the corresponding strength of the press freedom claim to determine MOPI claims.  Instead, they engage in a two-part process of subdividing the claim into discrete items of information and then declaring whether there is a public interest or not in each of those items.  If there is then the privacy claim fails.  If not then it succeeds.  Sadly, it is quite easy to construct plausible public interest claims given the broad range of analytical tools availableː that the claimant is a role model; that the claimant has misled the public; that the defendant enjoys a general freedom to criticise the claimant’s debauched lifestyle, etc.  Nevertheless, it is a central tenet of MOPI canon that ‘neither [right] has as such precedence over the other’ (Re S [2004] UKHL 47, [17]) (the “Equality Provision”).

I have (at least) two concerns for the future of MOPI.  First, whether this central tenet will need revision after the HRA is repealed and, secondly, whether a pro-press freedom trend could be corrected in future (ie, even if I am wrong about the current state of the law, what would prevent MOPI developing in a manner that is harmful to privacy rights?).  Both of these concerns are rooted in the status of the Strasbourg jurisprudence post-HRA repeal.

We know that the Conservatives are particularly troubled by the UK judiciary’s narrow interpretation of its obligations under s 2 HRA (the obligation to ‘take into account’ Strasbourg principles when determining human rights cases), which has been perceived (rightly or wrongly) to be undermining the principle of parliamentary sovereignty when judges are required, under s 3, to interpret legislation in a manner that is ECHR compatible.  Conceivably, then, the British Bill of Rights could retain human rights under the ECHR in full but simply remove this troublesome provision (as Helen Fenwick has previously suggested) – this would have no impact on MOPI, of course, since parliamentary sovereignty is not at stake.

That, though, is not what the government is suggesting.  The Conservative manifesto says that the British Bill of Rights will only cover ‘basic rights’ (so query whether privacy will be included at all) and will ‘break the formal link’ between the UK and ECtHR so that the Supreme Court is the ‘ultimate arbiter’ of human rights matters.  This puts the Strasbourg jurisprudence in a precarious position.  If privacy is downgraded to an interest then the ECtHR case law has little or no relevance anyway.  Even if not, it seems inconsistent with this idea of a ‘formal break’ if the Supreme Court (or any other) continues to apply Strasbourg principle to determine UK cases.  Moreover, the imperative to rely upon such principles evaporates.  So what if the common law is no longer in conformity with Strasbourg interpretations of Article 8?  That is surely the point.

The British Bill of Rights might contain an Article 8 equivalent although – given the Conservatives’ pointed dislike of Art 8 (albeit mostly in an immigration context) – it is likely to be written in much narrower terms than its predecessor.  Depending upon how it is written this might constitute a breach of the UK’s international law obligations (as Helen Fenwick has also discussed).  There would be a considerable time lag, however, before this breach bit.  Even if the ECtHR did decide that the measure fell outside of UK’s margin of appreciation (to determine how best to realise the right taking into account local conditions), the matter would be passed to the Committee of Ministers of the Council of Europe who supervise the execution of judgments.

In addition to requiring the state to inform it of just satisfaction to individual applicants, the member state is required to implement general measures to ensure future applicants are not affected.  Theoretically, the UK at this point could implement a marginal change that does not alter the revised Art 8 provision substantially but satisfies the precise circumstances raised in the case.  Alternatively, the UK could refuse to implement any such general measures, at which point diplomatic pressure would be applied with the threat of suspension or exclusion from the Council of Europe being the ultimate sanction.  Yet whether this is a meaningful threat may be doubted given that the UK might no longer be a member of the Council of Europe (or European Union) following the proposed referendum on the issue in 2017.

Correcting any existing or future weakening of privacy rights under MOPI then becomes difficult because, unlike freedom of speech, the common law in the HRA era (and certainly before) lacks the same level of norms, articulating its foundation and scope, as press freedom does (indeed, press freedom is so well-established in the common law that it would surely survive omission from the British Bill of Rights).  It has its grundnorm in Lord Hoffmann’s observation in Campbell that ‘what human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity’ ([2004] UKHL 22, [50]), which was instructive in the Mosley decision (eg, [2008] EWHC 1777 (QB), [7]).  Yet this does not seem to be a strong principle, or rather not one that is robustly applied in every case.  For example, it did not assist the claimant in YXB v TNO [2015] EWHC 826 (QB), who has now been named by newspapers, or prevent the judge from informing us that YXB had sent the defendant images of his erect penis and of himself masturbating.  It is difficult to think of a more extreme disregard for dignity and self-esteem.

The question then becomes whether MOPI would develop stronger privacy principles in the absence of any external legal pressures to do so.  It could where there was no competing free speech right at stake but not, I would suggest, if this meant curtailing that right.  A narrowing of the common law’s wide interpretation of the term ‘public interest’ seems unlikely.  Yet MOPI must protect against publications of information that severely undermines human autonomy, dignity and self-esteem (as Mosley graphically demonstrates) otherwise the tort is lost altogether.  That must be the case even if there is a public interest at stake.

Yet it seems incapable of protecting claimants from typical interferences with privacy where there is a public interest at stake (for the reasons I set out here).  In this sense, the Equality Provision needs revision because there must be presumptive priority for freedom of speech unless the privacy claim is stronger and, in that sense, the two rights are not equal.  It might be thought that a weak public interest claim would be defeated by a strong privacy claim however this cannot be the case.  Public interest expression must be considered a strong form of free speech claim, regardless of any subjective or paternalistic views on its merits.  Since a tie is not sufficient for the privacy claim to succeed then where there is a public interest in the expression the privacy claim can only succeed where the interference is extreme (which will be rare, although Mosley must be an example of this).

Thus, it seems to me, the post-HRA MOPI test will be subtly different and will involve, in effect, four stages.  First, the claimant will need to establish that the interference raises a reasonable expectation of privacy.  Second, and once satisfied of that, the court must be persuaded there is a public interest in the privacy-invading expression if the claim is to fail.  Third, the claim may still succeed if the court is satisfied that the interference with privacy is extreme unless, finally, the court is persuaded that the free speech claim is also extreme.  Whilst critics will not appreciate this treatment of privacy, this prospective development seems a logical progression given recent MOPI case law.

Dr Paul Wragg is an Associate Professor of Law and the University of Leeds.



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