Memorandum submitted by Michael Tugendhat
I am a barrister in practice at Five Raymond
Buildings, specialising in media law. I am a Judge of the Courts
of Appeal of Jersey and Guernsey, a Deputy High Court Judge and
a Bencher of the Inner Temple. I was educated at Gonville and
Caius College, Cambridge, and Yale University. I am appearing
as counsel for the claimants in Douglas v Hello!, (the
claimants include both the Douglases, and the publishers of OK!
magazine who had an exclusive contract with them). I appeared
for the newspaper defendants in Interbrew v Financial Times
and others  EWCA Civ 274 (The defendants were Financial
Times, Guardian, Independent, Times and Reuters), and for
a large number of the media organisations in R v Shayler
 UKHL 11. I am on the Management Committee of the AIRE Centre
(Advice on Individual Rights in Europe). Publications include
The Law of Privacy and the Media OUP 2002. My detailed
views on this topic are set out in that book.
My recommendation is that there be no further
legislative proposals in the field of invasion of privacy, when
that is understood to mean the disclosure of personal or private
information about individuals.
Invasion of privacy may also occur when one
person intrudes into the life of another, for example by harassment.
This form of invasion of privacy may occur whether or not there
is also disclosure or publication of private facts. This is an
area of the law where Parliament did intervene in the form of
the Protection from Harassment Act 1997. It is not yet clear whether
that is an adequate legislative response to the problem.
Invasion of privacy is also said to occur when
a person's name or likeness or voice is used by another for purposes
of publicity. In this area also it is my view that at present
the need for legislative intervention is not established.
This is the type of invasion of privacy which
has been most discussed by the Law Commission and others over
To a large extent the problems appear to have
been resolved by the passage of the Data Protection Act 1998.
The application of the data protection legislation to the media
came about as a matter of practice because the media gradually
adopted technologies which brought them within the scope of the
legislation. That this would happen was not widely foreseen until
shortly before it happened in the mid 1990s. The data protection
legislation is a statutory implementation of part of Article 8
of the European Convention on Human Rights (as appears from the
Recitals in the Directive 95/46/EC). In substance the 1998 Act
is a major privacy statute.
Any new legislation in this field must in practice
be introduced in consultation with other EU Member States.
First, the leading EU countries are parties
to the European Convention of Human Rights and share with the
UK the need to comply with the Convention and the decisions of
the Strasbourg Court, and those EU Directives which implement
aspects of Article 8. The EU Data Protection Directive is itself
an attempt to harmonise the national laws of Member States on
the implementation of ECHR Article 8. The e-commerce Directive
is another related example. Article 8 also applies to surveillance.
Various decisions of the European Court of Human Rights led to
UK legislation, first in the Interception of Communications Act
1985 and later, (when the 1985 Act proved not to be ECHR compliant),
the Regulation of Investigatory Powers Act 2000. Numerous other
legislative provisions aimed at protecting privacy have been introduced
with a view to ensuring compliance with the ECHR.
If English privacy law is to develop, then it
must continue to do so compatibly with the ECHR. In practice this
is likely to mean that developments will be in the direction of
at least some harmonisation with other ECHR Member States. While
Article 8 has its counterpart in the other human rights charters,
there is no similar system of enforcement to that provided in
Europe. It follows that comparisons with the positions in other
common law countries such as the US, Canada, Australia and New
Zealand are of much less importance to the UK than the shared
legal history of the common law jurisdictions might suggest. Apart
from Ireland and Scotland, other common law jurisdictions do not
follow the extensive ECHR jurisprudence. And even if these countries
have ideas which the UK might otherwise be minded to adopt, the
practicality of such adoption is likely to depend on our ability
to persuade our EU colleagues of the possibility and desirability
of so doing.
The decisions of the ECHR on privacy are developing
a coherent and structured body of law which the English courts
Invasion of privacy by disclosure of private
facts in many respects resembles defamation. In the past disclosures
about individuals' personal lives were often made the subject
of libel actions in which juries awarded high damages (as noted
by the Calcutt Committee. Cases include those where revelations
were made about a person's sexuality or health. Recently a number
of such cases have been addressed by successful applications for
privacy injunctions. The law of defamation has developed in favour
of freedom of expression under the influence of the ECHR. The
ECHR has in some ways increased respect for freedom of expression,
and in other ways increased respect for private life.
As a result of these recent developments, there
is a large area of the law which is now very uncertain. This is
itself a concern, since it is a requirement of human rights principles
that the law be sufficiently certain to enable people to make
informed decisions. Issues on which uncertainty exists are discussed
in The Law of Privacy and the Media chapter four. But the
consequence of the Human Rights Act is that legislation does not,
of itself, remove uncertainty in the law, as it used to do. The
legislation must be convention compliant.
Since the House of Lords has given permission
to appeal in the case of Secretary of State for the Home Office
v Wainwright, it is premature to comment on the state of the
law in this field. It may be that the 1997 Act will prove sufficient.
It has long been commented that the broadcasting
and press privacy codes were inadequate. It has recently been
confirmed in Peck v UK that they do not provide the effective
remedy that the ECHR requires in this field of the law. The statutory
and self regulatory codes provide no possibility for an injunction
to restrain publication, or for compensation, whatever the circumstances.
The self-regulatory and statutory bodies do not cover much that
is published in the UK. The most notable exceptions are books,
which are not the subject of any system of control other than
that of the courts, and publications coming from abroad in whatever
Circumstances in which injunctions or compensation
are appropriate are not common, but they do occur. A striking
example (where the courts and the PCC took conflicting views)
was the Attard cases (discussed in The Law of Privacy and the
Mediathe court proceedings were not reported). This
involved the publication of some information about the extraordinary
medical history of the little girl first known as Jodie, the conjoined
twin. This is also a case which demonstrates that it is not just
celebrities in the world of entertainment, sport and politics
who are concerned with privacy. It was of the greatest importance
to the Attard family to be able to sell their exclusive story
to media organisations of their choice. Exclusive arrangements
of that kind both bring financial advantages and enable the individual
to choose what parts of such a personal story will, and will not,
be revealed. Without such choice and control, individuals are
less likely to reveal anything at all. So this is a field where
respect of privacy can lead to an increase in freedom of expression.
The financial advantages accrue both to the individuals concerned
and to the media publishers. If that were not so, then publishers
would not invest the large sums that they do in such arrangements.
In most cases what is required is a cheap and
quick procedure which the self-regulatory and statutory bodies
do provide. In this respect, these bodies can be seen as affording
a type of Alternative Dispute Resolution. ADR is increasingly
favoured in fields where litigation has traditionally been the
only way to resolve disputes. The fact that legal remedies are
becoming available for invasion of privacy is not a reason for
abandoning or diminishing the role of the statutory and self regulatory
It is to be noted that the privacy codes are
themselves substantially based on the ECHR Article 8. They have
proved workable. If any new legislation were to be introduced,
it is likely that it would have to follow a similar structure
to the privacy codes. But if it did that, it would do little more
than is already achieved by the Human Rights Act 1998.
The Courts have developed this area of the law
in Irvine v Talksport Ltd  EWHC 367. Had they not
done so, it is likely that the system of regulation of advertising
administered by the Advertising Standards Authority would have
been held deficient by the European Court of Human Rights.
Whether the recent developments are sufficient
to prevent exploitation of individuals for commercial purposes
remains to be seen. But there is little sign that commercial organisations
have been failing to comply with the voluntary standards in the
17 February 2003