Privacy: will Parliament help or hinder?

An increasingly heated debate is taking place in the media about how the right to privacy should be balanced with the right to freedom of expression.  In the midst of this debate David Cameron recently declared his unease about judges delivering " a sort of privacy law without Parliament saying so."  By making this observation, Mr Cameron added the considerable authority of his office to the view frequently expressed in the popular press that judges have introduced a privacy law by the back door. He gives the impression that all will be well once Parliament debates the issue and introduces new legislation to define the balance to be applied by the courts between the competing rights.  However, on any objective view the current clamour from some branches of the media and politicians for Parliament to legislate is both ill-informed and irrational.

The formal introduction into English law of a right to privacy was extensively debated by Parliament at the time of the enactment of the Human Rights Act 1998.  Any suggestion that it was introduced by the back door by judges without Parliament's express approval is misleading. The issues now are whether the courts have been successful in striking a fair balance between privacy and freedom of expression when applying the law, or whether attempts by Parliament to further codify the law would be likely to achieve greater fairness and certainty.  An additional consideration is whether the recent publication on Twitter of the identities of celebrities alleged to have obtained super-injunctions renders the whole concept of a law of privacy redundant in the age of the internet and social media.  

This week the European Court of Human Rights (ECHR) rejected an application made by former FIA President, Max Mosley. He had sought a ruling that legislation should be introduced by the UK Parliament to require the subject of an article or broadcast which disclosed private information to be given advance warning and therefore time to obtain a court injunction preventing publication.  Mr Mosley, who had been awarded £60,000 by the High Court for breach of his privacy rights when the News of the World published details of his sexual activities, argued that he could never be adequately compensated post publication for the distress which the publication had caused to him and his family. Whilst expressing some sympathy for the particular facts of Mr Mosley's case, the ECHR firmly rejected his application saying that the ruling requested by him would, if applied generally, have a "chilling effect" on freedom of expression and would be of doubtful effectiveness.  There is clearly nothing in the ECHR's decision about which the media has any cause to complain.

Much recent criticism has been directed at the so-called "super-injunction."  Courts will only grant these injunctions (orders preventing not only publication of the details of the subject's behaviour but of his or her identity) after carrying out an intensive  examination of the facts of the individual case, deciding whether the right to privacy is engaged and then carrying out a careful balancing act between the right to privacy and the right to freedom of expression. As in last year's failed application for a super-injunction by premiership football star John Terry, a judge will be rigorous in examining the reasons for the application.  In John Terry's case the Judge found that a major motive for the application was to protect the player's valuable business sponsorship interests. In consequence his application for a super-injunction completely backfired on him, attracting a huge level of unwanted publicity to his affair and private life.


The reality is that courts do not interfere with reporting which involves the disclosure of private information in cases where there is a legitimate public interest in the disclosure of that information: for example, the secret adulterous affair of a government minister who hypocritically proclaims the virtues of married life.  There are, however, cases where the private information involved is only of use to satisfy the prurient interest of some sections of the public and to fuel the sales of those newspapers whose business it is to carry such stories.  I have no difficulty in those cases with courts making decisions which are aimed at protecting those individuals' legal rights to a private and family life and providing compensation when those rights are breached.

It has been suggested by Culture Secretary Jeremy Hunt that legislation will be introduced to provide further clarity on where the line is to be drawn in an individual case between privacy and freedom of speech.  The problem with this approach is that each individual case is fact sensitive and a fair result requires it to be decided on its particular facts.  It is very doubtful that further legislation will be other than a blunt instrument which gives rise to further legal argument.  It is also unlikely that legislation would bring  more clarity or fairness to the decision making process.  

Mr Hunt  suggests that Parliament may introduce controls over social media.  Good luck to him!  The reality is that invariably the sites are registered abroad in countries such as the USA where the right to privacy is not recognised and freedom of speech is said to reign supreme. It would be very surprising if the sites in question were to  agree to comply with controls which would offend the constitutions in their jurisdiction and it is difficult to understand how the controls could be effectively enforced from Whitehall.  Any controls would quickly fall into disrepute.  We should maturely accept that social media sites will continue to be forums for a degree of anarchy in the gossip, tittle tattle and  unreliable speculations they carry.  In no way should the content of these sites be allowed to excuse press and broadcasters from riding roughshod over the privacy rights of individuals.

Without doubt, a head of steam has built up amongst politicians and certain branches of the media for legislation.  However, a calm and objective examination of the courts' decisions does not give real cause for concern that the law is being interpreted or applied unfairly as between the right to privacy and the right to freedom of expression.  If, as I do, we value the right we have been given as individuals by Article 8 to have our right to a "private and family life, [our] home and correspondence" respected, so far the courts appear to have got it about right.

Ashfords LLP is regulated by the Solicitors Regulation Authority.  The information in this note is intended to be general information about English law only and not comprehensive.  It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.