A Christmas Wish for Privacy Law Developments in 2016 – Paul Wragg

18 12 2015

privacy1Imagine, set before us, the judicial toolkit in misuse of private information (MOPI) claims, as if it had physical properties.  We would see a fine set of golden scales, with one plate marked ‘privacy’ and the other marked ‘public interest’.

In a bag marked ‘privacy weights’, we would discover a wide array of small weights, of varying measures, with labels relating to the characteristics of the claimant, nature of the invasion and its effect upon the claimant’s private and family life.

In the other bag, though, marked ‘public interest weights’ we find only two items: a bowl of salt crystals, marked ‘modicum of public interest’, and one giant weight, requiring at least four people to lift it, marked ‘public interest’.

Most tellingly, we should discover that all the little privacy weights are of less cumulative weight than the boulder we call the public interest weight.  Consequently, we would see the great failure of our current arrangements for protecting private information of public interest, for though the judge may make very fine adjustments to account for the claimants circumstances, this is of little real value when the weights will either easily defeat the sprinkling of ‘modicum of public interest’ or else be defeated, spectacularly, by the use of the ‘public interest’ weight.

I have set out my reasons previously, here and here, to show why I believed the ‘balancing’ process in MOPI is seriously flawed in this way.  In a recent article, published in the Journal of Media Law, I set out how I think this problem might be overcome (or, at least, reduced).  This post summarises the conclusions I reach and the direction that I think the debate should move in.

The main problem, as I see it, in persisting with the balancing analogy is how judges can overcome the difficulties of differentiating levels of ‘public interest’.  Presently, judges seem to think of ‘public interest’ in fairly static, absolute terms, ie, there either is a public interest in expression or there is not.  The concession that there is a ‘modicum’ is neither here nor there and evokes the old latin phrase de minimis non curat lex.

A differentiated approach, in which public interest occupies a spectrum from low to high, is difficult to conceive and near impossible to implement, for how are judges to make such assessments in an independent and objective manner?  It might be said that judges, particularly in the European Court of Human Rights, do just that by determining whether the speech is political, artistic or commercial and applying different levels of judicial scrutiny to national decision-making accordingly.  Such an approach could be brought to bear in MOPI claims, and indeed, I have suggested so myself.

The difficulty is, I think, that the UK judiciary has boxed itself into a corner by accepting that public interest discussion occupies such a wide range of expression, including that which labels certain behaviour socially and morally unacceptable.  This sort of speech would have to be treated as being political (and not artistic or commercial) – and, sadly, that would include much celebrity gossip that chastises celebrity excess.

This is not my view – but it is one that is readily (and increasingly) found in the case law, from Terry through to McClaren and beyond.  To ask judges to start evaluating the ‘strength’ or ‘importance’ of the public interest in that political expression would be hugely problematic.  But, anyway, I think this sort of exercise is ultimately pointless because the outcome of privacy claims should not hang solely on the categorisation of speech.  This is the present state of privacy law and ever greater refinement of our valuation of speech should not be thought to be the solution to current problems.

Instead, we should return to what it is that privacy law should be doing and to my mind that is to prevent or otherwise cure wrongs done to the claimant.  Ultimately, then, this is an exercise in the evaluation of harms.  This sort of thinking is evident in Campbell.  There, the court recognised that the fact of public interest expression ought not to trump an individual’s right to respect for privacy but instead should be a factor to consider.

To better realise this, whilst preserving the importance of public interest expression, it seems to me that there should be greater scope for a court to conclude that the harm caused to the claimant is so great that the public interest in expression cannot override the claimant’s need for compensation.  Established liberal principle provides direction on how this might be achieved.  Whereas it is always acceptable for anyone to criticise an individual’s lifestyle choices and seek to persuade them to alter them (because they are a role model or whatever), it is a different matter if the effect of the expression is coercive.

In those circumstances there should be discussion of whether coercion is legitimate or not.  Now, the meaning and standard of coercion is, of itself, a matter of debate but a discussion on whether speech is unjustifiably coercive is of a much different (and more expansive) nature than the question of whether speech is in the public interest (particularly given how widely that term is now interpreted).

This sort of approach would extend the Campbell test from its current two-part test to a four-part test in which the courts could continue to ask: 1) is there a reasonable expectation of privacy?; 2) is privacy outweighed by a countervailing public interest? But then ask 3) is the expression coercive?  And then 4) was it unjustifiably coercive?

This would allow a judge to evaluate the degree of coverage relating to a particular public interest matter and determine whether it was disproportionate in nature.  For example, imagine a lawyer has piqued newspaper attention by committing a minor offence.  This newspaper decides to publish a series of stories over the course of several weeks in which all aspects of the lawyer’s lifestyle choices are identified and scrutinised, including interviews with family members, friends, colleagues and clients.  As a result of this intense press scrutiny, the lawyer is eventually dismissed by his employer.  Rather than determine the lawyer’s claim on the narrow question of whether there was a public interest in the story or not (which, most likely, there was), the court could instead find that there was a public interest but that the coercive nature of coverage did not justify the profound effect upon the lawyer’s life.  Or it could decide that the coercion was justifiable.  Regardless, what is most important is that this extension of the Campbell test, from a two-part to a four-part test, provides greater space for debate on the resolution of privacy claims than the current binary approach, centred on categorisation of the expression, does.

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


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