Select Committee on Culture, Media and Sport Written Evidence


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:

    (a)  from those data, or

    (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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