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Select Committee on Culture, Media and Sport Minutes of Evidence


Memorandum submitted by Michael Tugendhat QC

INTRODUCTION

  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 [2002] 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 [2002] 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.

DISCLOSURE OF PRIVATE FACTS

  This is the type of invasion of privacy which has been most discussed by the Law Commission and others over many years.

  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 can follow.

  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.

INTRUSION OR HARASSMENT

  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.

THE PRIVACY CODES AND THE BODIES THAT ADMINISTER THEM

  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 form.

  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 Media—the 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 bodies.

  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.

PUBLICITY RIGHTS

  The Courts have developed this area of the law in Irvine v Talksport Ltd [2002] 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 past.

17 February 2003


 
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