A privacy law
99. The debate over whether there should be a privacy
law has never been simultaneously colder and hotter. The Government
has stated clearly that it has no intention of bringing forward
proposals for a privacy law and the PCC, the press industry and
others argue strongly against the proposal.[113]
At the same time the European Court of Human Rights (ECHR) has
been critical of the UK in this respect and the subsequent introduction
of the Human Rights Act has led to a number of judgments in the
English Courts indicative of pressure towards a privacy law.[114]
100. Mr Paul Dacre, editor of The Daily Mail
and Editor-in-Chief of Associated News, wrote that: "The
press in this country works under some of the most stringent and
powerful laws of any western democracy. The libel laws, contempt
of court, the provisions of the Youth Justice and Criminal Evidence
Act, the Children Acts, the Law of Confidence, the body of law
restricting the reporting of certain cases in court, the Protection
from Harassment Act, the Copyright laws, the Data Protection Act,
the Human Rights Act, the Sexual Offences Act, the Representation
of the People Act, the Access to Justice Act, and other numerous
restrictive laws already add up to a huge body of legal controls.
To add more would add to the burden, not only on a free press,
but on the courts and force ordinary people into the onerous and
expensive process of going to law to exercise their rights."[115]
Mr Alan Rusbridger, editor of The Guardian, told us that,
while his newspaper had sponsored the Privacy and Defamation Bill
in 1998, he had since changed his mind. He said he was against
any privacy law but, on balance, would prefer a statute going
through Parliament to case law being developed ad hoc in
the courts.[116]
101. The PCC cited Lord Wakeham, speaking during
the passage of the Human Rights Bill, who argued that privacy
law would be a law for the rich and could make the press industry
withdraw effective cooperation with the PCC, thus depriving ordinary
people of an avenue for redress without giving them anything useful
in its place.[117]
The PCC said that the redress available under the law would be:
slow (measured in years not days); expensive (even taking into
account new provision of conditional fee arrangements); and exposing
(with cross-examination and the reporting of proceedings combining
to repeat and extend the original cause for complaint).[118]
The PressWise Trust said that a privacy law aimed specifically
at the media would be "inimical to press freedom" but
a law of general application might actually be helpful to the
press if it clarified more precisely what protection individuals
could expect.[119]
The Commission cited Mr Justice Silber (ruling in Anna Ford's
application for Judicial Review of a PCC decision) who said that
the "Commission is a body whose membership and expertise
makes it much better equipped than the courts to resolve the difficult
exercise of balancing the conflicting rights … [of] privacy
and of the newspapers to publish."[120]
102. This view was however firmly rejected by Mr
Rabinder Singh QC, and Mr James Strachan, who pointed out that
the courts are in fact required to carry out this very exercise
in the application of the Human Rights Act, including with reference
to the PCC Code.[121]
However, Mr Michael Tugendhat QC told us that at present the situation
was not "bust" and therefore should not be "fixed".
There was massive protection for many aspects of privacy in English
law, principally flowing from law on breach of confidence and
data protection (an issue at stake in Campbell v. MGN Ltd),
as well as the Human Rights Act (although the latter also created
uncertainty). Existing law had to be interpreted by the courts,
but so would any new legislation which could not be anything other
than in reasonably broad terms.[122]
This was echoed by Baroness Scotland who told us that under any
new privacy law
"...the courts…would have to interpret
any new privacy law and make that balance between…Article
8 and Article 10…the ballast [for] which is given by Section
12 of Human Rights Act, which says that you have to consider freedom
of expression as being a very important issue."[123]
103. The case for a specific act was also put by
a number of witnesses. Professor Eric Barendt said that it was
"anomalous" that privacy was not protected in England
and Wales, it being artificial to rely on breach of confidence
(as Catherine Zeta-Jones has done) and other remedies. He said
while case law was bound to develop on the subject there would
be an extended period of uncertainty which itself could chill
investigative journalism.[124]
A number of witnesses said that they saw no reason why the law
and the PCC could not co-exist and the new PCC Chairman has made
the same point in another context.[125]
Sir Louis Blom-Cooper. Chairman of the PressWise Trust, told us
that a "law which said "unwarranted invasion of privacy"
[will make] every editor who makes a decision about publication…stop
in his tracks before he actually published." Sir Louis added
that this was the best remedy that a free society can provide".
104. Professor Barendt said that the reason that
the courts often gave for not acting was the boldness of the departure
which was something for Parliament to decide although "this
is an interest that cries out for protection". He made a
further point that legislation had a declaratory quality and,
despite the prospects for few actions, there was value in society
declaring that privacy was a fundamental human right.[126]
Mr Mike Jempson, from the PressWise Trust, wrote that the real
weakness of human rights legislation in the UK was the absence
of a Human Rights Commission to offer assistance and resources
in particular cases where important principles are at stake. Mr
Chris Frost, NUJ Ethics Committee, agreed that this was a lack
but said that the NUJ was not in favour of a privacy law.[127]
105. The findings of the European Court of Human
Rights in the case of Peck have been much discussed in
evidence to us. The case's effect is confusing because the introduction
of the Human Rights Act intervened between the original events
and the final judgment of the ECHR (and the fact that the Government
attempted to argue an old case on new law does not help). In Peck
the ECHR found the UK to have deficient arrangements to provide
remedy or relief to the complainant. The deficiency was highlighted
by the fact that Mr Peck's cause of action did not engage the
breach of confidence law that has long stood as proxy for a privacy
law. That being so, there was no recourse, as the law then stood,
nor to the media regulators who could provide no remedies; either
of restraint or of damages.[128]
106. The question is whether the Human Rights Act
1998 rectifies this deficiency. The PCC, Mr Tugendhat, and presumably
the Government, amongst others, appear to think it does. Professor
Barendt, Mr Singh and Mr Strachan, amongst others, believe that
relying on the courts and cases to develop the law sufficiently
in reasonable time is not enough.
107. We regard the pragmatic arguments against introducing
a privacy law to be quite seductive, especially with regard to
the question of limited access to the law for people of ordinary
means. However, it seems that the right to respect for private
life, introduced into English law by the Human Rights Act 1998,
has indeed sown the seed of privacy law. If so, the really pragmatic
question is whether its growth should be under the care of the
courts, on a case-by-case basis, or of the Government and Parliament
subject to the extensive consultative processes now available
for legislative proposals: Green Paper, White Paper, draft Bill,
Bill and passage through the two Houses. Evidence from the PressWise
Trust stated that
"By demanding that the elected legislature should
not define the electorate's rights and the courts should not adjudicate
on whether the law has been breached, the [press] industry lays
itself open to the charge of arrogance and the sort of abuse of
power against which the Human Rights Act is designed to protect
the public."[129]
108. The PCC were clear that the Human Rights Act
should not, and would not, become a "privacy law by the back
door" and rather scorned Mr Justice Sedley's sole finding,
in the first Douglas v. Hello! case that English law did
now recognise a discrete privacy right.[130]
In contrast, in Peck, the fact that only one judge
out of three made this observation, contributed to the ECHR's
rejection of the Government's argument that the UK now had an
adequate remedy in "development" by the courts; i.e.
the law of confidence. Mr Singh and Mr Strachan suggest that the
PCC and the press were in a bind because the alternative to a
privacy law (whether by the back or the front door) fully to satisfy
our Convention obligations was a tough new statutory media regulators
with powers to impose prior restraint and award damages.[131]
109. In the most recent relevant judgment brought
to our attention (Douglas v. Hello!) Mr Justice
Lindsay articulated the issue with great clarity:
"So broad is the subject of privacy and such
are the ramifications of any free-standing law in the area that
the subject is better left to Parliament which can, of course,
consult interests far more widely than can be taken into account
in the course of ordinary inter partes litigation. A judge
should therefore be chary of doing that which is better done by
Parliament. That Parliament has failed so far to grasp the nettle
does not prove that it will not have to be grasped in the future.
The recent judgment in Peck v. United Kingdom in the ECHR,
given on the 28th January 2003, shows that in circumstances where
the law of confidence did not operate our domestic law has already
been held to be inadequate. That inadequacy will have to be made
good and if Parliament does not step in then the Courts will be
obliged to. Further development by the Courts may merely be awaiting
the first post-Human Rights Act case where neither the law of
confidence nor any other domestic law protects an individual who
deserves protection. A glance at a crystal ball of, so to speak,
only a low wattage suggests that if Parliament does not act soon
the less satisfactory course, of the Courts creating the law bit
by bit at the expense of litigants and with inevitable delays
and uncertainty, will be thrust upon the judiciary. But that will
only happen when a case arises in which the existing law of confidence
gives no or inadequate protection; this case now before me is
not such a case and there is therefore no need for me to attempt
to construct a law of privacy and, that being so, it would be
wrong of me to attempt to do so."[132]
110. This supports the opinion of the Information
Commissioner who felt that the courts were cautiously moving towards
a common law concept of privacy similar to the law of confidence.
He told us that the Court of Appeal was very close to recognising
that "in an appropriate case, and on particular facts, a
"breach of privacy" would be found; as opposed to a
"breach of confidence".[133]
39 
