APPENDIX 120
Supplementary memorandum submitted by
Mr Michael Tugendhat QC
COMMENT ON
THE SUPPLEMENTARY
MEMORANDUM SUBMITTED
BY THE
PCC
I am grateful for the invitation to comment
on the Supplementary Memorandum submitted by the PCC. I do so
by reference to the following extracts from it.
"One of the recurring themes of the Committee's
hearings has been the idea that the Peck case in the European
Court in some way will compel either the government to introduce
new laws to meet the requirements of the judgement or compel the
Commission to overhaul the remedies that it offers. I imagine
that the Committee is labouring under this illusion because of
some wishful-thinking evidence from lawyers . . . Now there is
the Human Rights Act which satisfies the conditions that the Court
lay down—so there is no need to introduce any new legislation.
Statements by your witnesses to the contrary are inaccurate."
I agree with the PCC that there is no need to
introduce new legislation at the present time.[501]
As stated in my submission of 17 February 2003, my views are based
on the decisions of the Court of Appeal in Campbell v MGN Ltd
[2002] EWCA Civ 1373 and A v B plc [2002] EWCA 337;
[2002] 3 WLR 542 [8]. In A v B the Court said
"we would hope that the law has now, at
least at the level below the House of Lords, become sufficiently
clear to make the citation of authority on this scale unnecessary
... A duty of confidence will arise whenever the party subject
to the duty is in a situation where he either knows or ought to
know that the other person can reasonably expect his privacy to
be protected".
However, the agreement between me and the PCC
may be more apparent than real.
The PCC say that "alternatives to the PCC
are impractical and undesirable. Statutory controls would be impossible
to implement under the HRA, and privacy laws would be inaccessible
to ordinary people" (PCC's Submission to the Committee, February
2003, p 9, Conclusion and Annex 4).
I disagree strongly with these statements
— statutory control of the media is
positively required by the HRA, and such control has in fact been
implemented through numerous statutes, eg the Data Protection
Act 1998 ("DPA") and the Protection from Harassment
Act 1997.
— the common law is developing as stated
in A v B and Campell to provide general protection
for individuals from disclosure of private information.
— privacy laws are as accessible to
ordinary people as any other laws
In other words, no new laws are necessary because
recent changes in the law have already cured the defect in English
law pointed out in Peck. If Mr Peck's case had arisen after
the 1998 legislation was in force, he would have had a good claim
against not only the Brentwood Borough Council (under both HRA
and DPA, since the Council is a public authority bound by the
HRA), but also against the media (under the Data Protection Act
1998) [502]and,
probably, under the common law of confidentiality or privacy as
recognised in A v B[503].
If I am wrong, and the House of Lords [504]decides
that the 1998 Acts do not cure the defect in English law pointed
out in Peck, then I would take the view (held eg by Prof
Barendt) that new laws are necessary to meet the requirements
of the Peck judgment.
"Mr Peck did not contest or appeal the PCC's
decision and the PCC was not a party to the Strasbourg action.
His case was in fact brought against actions by Brentwood Borough
Council".
This is confusing. Of course the PCC was not
a party to the Strasbourg action. It never could have been a party.
The only parties to cases in Strasbourg are the individual who
claims his human rights have been infringed (here Mr Peck), and
the state (here the UK), which she or he claims has infringed
that right.
It is correct that Mr Peck had applied for judicial
review in England only against the Council, and not (as he might
have done) against the PCC. But the PCC can draw little comfort
from that. At para 94 of the Peck judgment it is recorded
that ". . . the Government pointed out that the applicant
had been able to assert and vindicate his claims before the BSC,
the ITC and the PCC". It is in rejecting the UK Government's
submission that the ECHR makes the findings it did in paras 108-9
of its judgment:
"108. The Court notes that the Government
submitted that the proceedings before these commissions provided
the applicant with an opportunity to assert and vindicate his
rights. However, they accept that those bodies were not `intended
to provide a legal remedy, in the sense of making pecuniary compensation
available to an aggrieved individual who may have been injured
by an infringement of the relevant codes'.
109. The Court finds that the lack of legal
power of the commissions to award damages to the applicant means
that those bodies could not provide an effective remedy to him.
It notes that the ITC's power to impose a fine on the relevant
television company does not amount to an award of damages to the
applicant. While the applicant was aware of the Council's disclosures
prior to `Yellow Advertiser' article of February 1996 and the
BBC broadcasts, neither the BSC not the PCC had the power to prevent
such publications or broadcasts."
If there had been a judicial review of the PCC
followed by a case in Strasbourg the opposing party would have
been UK Government and not the PCC. The Government could not have
submitted more than it did in fact submit in the case arising
out of the judicial review of the Council.
"But the key point is that the Peck case
took place before the Human Rights Act was passed—a point
never raised by any of your witnesses. An attempt by the government
to argue the position as it has been since the Act was passed
was rejected by the Court, which said it could only consider the
position at the time that the events took place".
This is correct so far as it goes, but confusing.
If a case similar to Mr Peck's case were to arise now that the
HRA has came into force, and if the PCC were to reject the new
victim's complaint on the grounds that it did reject Mr Peck's
complaint (ie that the photographs were of the new victim in a
public place), then an application by the new victim for judicial
review of the PCC's decision would be bound to succeed. If it
did not succeed in the English national courts, then the new victim
would go to Strasbourg, where again he would be bound to succeed.
In other words, the PCC's status as a self-regulatory body is
now a matter of name or procedure only, and not a matter of substance.
It will be bound to follow the law as laid down by Strasbourg
and the English courts.
In fact, the new victim would have a choice.
He could take his case to the PCC, and then apply for judicial
review if the PCC rejected the complaint. Alternatively, he could
go straight to an English court complaining of breaches of the
HRA and DPA, and, if necessary, of the common law of confidence/privacy
as it has developed over the last two years. If he wanted a pre-publication
injunction, or compensation, he would have to go straight to Court,
since the PCC does not issue injunctions or give compensation.
FURTHER SUBMISSIONS
The existing law
If Parliament were minded to pass a new privacy
law designed to protect individuals from disclosure of facts about
themselves, the new law could be based on the DPA 1998. Very little
amendment would be needed to the 1998 to convert it into a general
law protecting individuals from the publication of their private
information (ie personal information, whether confidential or
not). All that would be necessary to make the Act cover all such
information would be an amendment to delete the following provision
of the definitions in s1:
"`data' means information which:
(a) is being processed by means of equipment
operating automatically in response to instructions given for
that purpose;
(b) is recorded with the intention that it
should be processed by means of such equipment;
(c) is recorded as part of a relevant filing
system or with the intention that it should form part of a relevant
filing system; or
(d) does not fall within paragraph (a), (b)
or (c) but forms part of an accessible record as defined by section
68;"
The Act would then apply to all personal data
(regardless of the form in which it happened to be stored). The
existing definition of "personal data" in the Act would
remain. It could not be wider:
"`personal data' means data which relate
to a living individual who can be identified:
(b) from those data and other information
which is in the possession of, or is likely to come into the possession
of, the data controller, . . ."
There would, of course, be a need for consequential
amendments.
However, if the concern of Parliament is to
protect individuals from disclosure of personal information about
themselves by the media, the need for such an amendment is not
established. This is because the media generally do now process
their data in a way which means that their activities are normally
covered by the 1998 Act in its present form.
The effect of the Data Protection Act 1998 on
the media is not yet widely known or understood. This is changing.
There are now an increasing number of claims being formulated
under this Act against the media. The effect of the Act is discussed
in chapter 5 of The Law of Privacy and the Media eds Tugendhat
and Christie (OUP 2002), which starts as follows:
5.01
This Chapter addresses the challenges to the media
and freedom of expression that have been introduced to English
law by the Data Protection Act 1998. The Act represents the UK's
implementation of Directive 95/46/EC,[506]
which, as Recital 9 makes clear, is expressly concerned with the
right to privacy and laid down requirements for Member States
to adopt data protection legislation at the national level in
order to protect privacy in relation to both computerised and
manual files. The words "privacy" and "private"
in this context are used in the same sense as in the expression
"private property" meaning personal property. It connotes
no more than that information is personal. There is no connotation
of secrecy. Data protection rights are apt to protect information
which is secret. But, like copyright, they are also apt to enable
individuals to prevent others exploiting for gain information
about an individual which is not secret. [507]
5.02
The Act is also of direct interest to the media.
It affects them not only in their role as investigators or news
gatherers, but also as processors of data themselves. In the former
case, the Act may be used by public authorities or corporate bodies
as an excuse to prevent the release of information; in the latter
case, the media are required to comply with the privacy rights
of those about whom they hold or publish information.
The PCC"s submission "Why a privacy
law would be of no use to ordinary complainants" (Annex 4)
There can be no doubt that the PCC has performed,
and can continue to perform, a valuable role, even in its present
form. But the submission by the PCC that a privacy law would be
of no use to ordinary complainants is untenable.
The fact that a law is in force at all is of
benefit to everyone. The fact that there is a law is a benefit
because it sets a standard. The effectiveness of a law cannot
be measured simply by the number of complaints that are brought
under it. And if the fact that a law would be inaccessible to
ordinary people were a good argument against legislation, then
there would be much less legislation than there is.
All the broadcasters, and much of the print
media, already conduct their affairs in general compliance with
the law. Most national media have in-house lawyers whose task
it is to give pre-publication advice, day and night. Generally
this advice is followed. The major area of concern is the tabloid
press. According to the submission to the Committee by The
Guardian dated 7 February 2003, pages 29-30 there is a widespread
practice by some newspapers of using illegal clandestine methods,
with the help of corrupt private detectives and police officers.
If this is so, it is already illegal, both under existing criminal
privacy statutes (eg Misuse of Computers Act 1990, Regulation
of Investigatory Powers Act 2000) as well as under the DPA. The
DPA s.13 already provides a right of compensation to the individuals
concerned.
There are other laws which are inaccessible
to ordinary complainants, but nevertheless of value to them. There
are very few libel actions brought by anyone, but the law of libel
is none the less of use to everyone, since the media normally
attempt to comply with it. There are cases where an editor has
deliberately published something libellous because he believed
that the victim will not sue. Editors sometimes do that where
the victim is a foreigner with little or no connection with this
country. If there are such cases where the victim is a person
in England who could not afford to sue, then there is little evidence
known to me that this is a widespread problem.
Mr Peck is himself an ordinary complainant.
In his case it was the PCC that was of no use. But he was able
to take his case first to the English courts and then to Strasbourg.
Ordinary people sometimes have the support of trade unions, employers
and those who provide legal advice and assistance for free, or
on conditional fee arrangements. Thomas v News Group
Newspapers Ltd [2001] EWCA Civ 1233 is an example of a police
officer who complained of harassment by a tabloid newspaper under
the Protection from Harassment Act 1997 (which is a privacy statute
directed to preventing intrusion into people"s private lives).
Secretary of State for the Home Office v Wainwright
[2001] EWCA Civ 2081; [2002] 3 WLR 405 is a privacy case involving
harassment by a strip search. It does not directly involve the
media, or the disclosure of private information. But it is a case
of infringement of privacy by intrusion. The Wainwrights are ordinary
people. The House of Lords has given the Wainwrights permission
to appeal. The appeal will clarify whether intrusion and harassment
are actionable at common law, and, if not, whether any amendment
is necessary to the Protection from Harassment Act 1997. The result
will clarify the law as it applies not only to public authorities,
but also as it applies media intrusion and harassment.
In any event, the fact that people of ordinary
means have limited access to justice in England is not a reason
for refusing access to justice to those who can afford it.
Where there is a complaint, the most important remedy in a privacy
case is a pre-publication injunction. The PCC does not provide
this at all. The Courts do. And the Courts act very quickly indeed.
A pre-publication injunction can be obtained in a few hours. Such
injunctions are regularly granted, especially against Sunday newspapers.
They are granted in private, and no judgments are available. It
is, of course, true that ordinary complainants generally cannot
afford to obtain injunctions, but this is better than having no
access to injunctions for anyone at all. There are important cases
where ordinary complainants can obtain injunctions. One is where
the individual concerned has a story to tell and has sold his
story exclusively to one publisher. [1]This
is, and always has been, a common device used by individuals to
protect themselves from a media free for all, and by the media
to obtain stories (or details of stories) that they would not
otherwise be able to obtain. Even in cases where the complainant
could obviously afford to obtain an injunction, there is often
a newspaper claimant as well as an individual: Douglas v
Hello! is an example of such a case.
21 March 2003
501 There may be a case for various amendments in detail
of existing legislation, but this is not addressed in my Submissions.Back
502 In Campbell v MGN Ltd
[2002] EWCA Civ 1373 the Court of Appeal accepted at [124] that
Miss Campbell would have had a claim for compensation under s 13
of the Act for the publication in The Daily Mirror of the
fact that she was a drug addict if s32 did not exempt the newspaper
publishers, as they found that it did, on the facts of that case.
The CA said: "Furthermore, the requirements of the Act, in
the absence of s32 [which provides a public interest defence], would
impose restrictions on the media which would radically restrict
the freedom of the press . . . The facts of this case provide an
illustration of this, for it seems to us that Miss Campbell could
have invoked s13 to seek compensation for the publication of the
fact that she is a drug addict, if s32 [did not provide a public
interest defence]." In Peck at para 85 the ECHR found on the
facts of that case that there was no public interest defence, and
at para 86 the ECHR found there was no public domain defence (contrary
to the adjudication of the PCC). Back
503 There are other cases, including R v
Loveridge [2001] EWCA Crim 973 in which Lord Woolf CJ said,
in relation to photographs taken in a public building: ".
. . in any event, secret filming in a place to which the public
has free access can amount to an infringement even where there
is no private element to the events filmed. Secret filming is
considered objectionable, because it is not open to those who
are the subject of the filming to take any action to prevent it:
R v Broadcasting Standards Commission ex parte British
Broadcasting Corporation (Liberty intervening) [2000] 3 All
ER 989, [2000] 3 WLR 1327, CA, 6 April 2000.Back
504 The House of Lords will has given permission
for Miss Campbell to appeal.Back
505 The DPA 1998, which came into force on 1 March
2000, replaced the Data Protection Act 1984, which had little
practical application to the media. Extracts from the Act are
set out in Appendix E.Back
506 [1995] OJ L281/31. Implementation of the Directive
throughout the European Union was intended to give effect in the
context of data protection to Art eight (right to respect for
private and family life) of the European Convention on Human Rights.
It is a striking example of the harmonisation of private law among
Member States. The Directive can be relied on as having direct
effect: R (Robertson) v City of Wakefield Metropolitan
Council [2002] 2 WLR 889 at [17]-[20]. For the effect of Directives
in giving rise to rights enforceable against individuals see D
Vaughan (ed), Law of the European Communities, (1990-2002)
3 [324]-[327], [330]-[344], [362]-[365]. The Directive is set
out in full in Appendix D.Back
507 R (Robertson) v City
of Wakefield Metropolitan Council (n 2 above) concerning the
claimant"s address; see para 5.21 below. Back
1 See Attard v Greater Manchester Newspapers Ltd
described in The Law of Privacy and the Media Tugendhat
& Christie para 3.100.Back
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