APPENDIX 72
Memorandum submitted by Fladgate Fielder
I am writing to you on certain specific and
limited aspects in relation to this subject. I write as a solicitor
in private practice, having been a partner in various firms including
my own for over 30 years, and with a broad commercial practice.
This letter does not serve to represent the interests of any particular
client or industry but reflects certain principles which I believe
to be important in the current debate.
My interest in the subject was focused during
the course of my studies, over recent years, for a MPhil degree
in Critical Management at Lancaster University Management School
where my 70,000 word thesis was on the subject of "Privacy
at work". This gave me the opportunity to study, not merely
the legal, but also the social implications of much of our legislation
in this area.
I wish to put forward the following ideas for the
consideration of the committee.
1. DO WE
HAVE AN
EXISTING LAW
OF PRIVACY?
1.1 This is an issue on which I have written
and spoken at some length but I do not believe that we do have
what might be described as a right to privacy or a law protecting
privacy as such. We have a series of laws, which have been developed
and adapted over the years, particularly over recent years and
multifarious areas of legislation which impact in some way on
the subject. In particular we have an expanding common law concept
of confidentiality. We also have as part of English law Article
8 of the European Convention on Human Rights. This article is
often referred to as giving a right of privacy but, as your committee
will be aware, it specifically establishes as a human right "the
right to respect for (an individual's) private and family life,
his home and correspondence . . .".
1.2 The word that is being under-stressed
here, I believe, is the word "respect". There is no
right to privacy as such. The Article 8 right is of course to
be balanced against the Article 10 right in relation to freedom
of expression. Any new legislation or court decisions must have
regard to and be consistent with the provisions of the ECHR and
Articles 8 and 10 in particular. Any proposals by your committee
would therefore be consistent with those principles.
2. DISTINCTION
BETWEEN PRIVACY
AND PUBLICITY
RIGHTS
2.1 English law does not have any single
law which can be characterised as granting publicity rights, personality
rights or image rights. There is however a set of legal principles,
derived from common law, statute and regulation, which have the
combined affect of creating such legal protection. And the law
in this area continues to develop. The recent decision of Laddie,
J in the Irvine v Talk Radio case clearly extended
the concept of image rights being available, even when there is
no "common field of activity". However, privacy concepts
have been used in some cases to seek to establish what are in
fact image rights. The celebrated Douglas v Hello!
case now under appeal is, in my view, essentially a case about
the ability to manage the rights relating to one's own image,
but the case is being aired primarily in relation to our law of
confidentiality and privacy. It would be ironic in the extreme
if a case about a very public event involving two well-known people
resulted in being a leading case on our law of privacy.
2.2 In my view celebrity rights, which are
essential controlled with the exploitation of image for profit,
are fundamentally different from the human right to respect for
private and family life, and there is perhaps an opportunity for
your committee to establish a clear distinction and, whilst not
dealing directly with the issue of celebrities, perhaps to indicate
that the two issues should be clearly separated in law.
3. WHAT IS
PRIVACY?
3.1 My third point relates to the nebulous
nature of privacy. The word is much used but very rarely defined.
In my thesis, completed in 2001, I prepared a detailed schedule
or taxonomy of privacy concepts in progressive order from "hard"
personal data and qualifications through relationships, financial
status, genetic identity, health, personal and sexual habits through
to the extremely difficult concepts of personal space/physical
privacy, personality and identity and thoughts, emotions and dreams.
This is a huge kaleidoscope of what I refer to as the "multifaceted"
nature of privacy. If we seek to legislate for such a subject,
we need to be very precise about exactly what aspect we seek to
deal with.
3.2 Much of the hard "information"
is already covered by our data protection laws. I would not wish
to see additional burdens placed on business in this area. In
other respects the law not only fails to protect privacy but in
some cases actually exposes people to the glare of publicity.
The most obvious example is where a person is arrested and charged
with an offence (and in some particularly difficult cases even
when there may be a suspicion but no charge). At times is seems
as though such individuals are guilty until proved innocent, but
even then the stain of the publicity will linger on. The same,
however, can apply to witnesses to events, even casual observers
of a single incident, where our accusatorial system of justice
will often entitle opposing counsel to challenge, in open court
and reportable proceedings, the personality of a witness whose
evidence may be crucial. In this respect privacy is seen to be
balanced against the interests of justice. In a broader sense,
privacy should also be balanced against judgement.
4. THE DANGERS
OF OVER-PROTECTION
4.1 Finally, I would like to refer briefly
to my concern on the prospect that over-protection of individual
privacy, in the course of day to day dealings, could have a progressively
dissocialising affect. There is already a myriad of rights between
individuals and I am equally clear that emotional hurt may be
every bit as devastating, and in some cases more devastating,
than physical hurt. Nevertheless our society, if we are to remain
human, depends upon interaction with other people and learning
from the experience. If the state imposes, or even permits, official
barriers to be created in too many areas it will cause progressive
alienation or what I refer to as "social autism". Society
has enough breakdowns already; but one thing about which we can
be reasonably confident is that increased communication is the
best recipe for increased understanding and we must be extremely
cautious about any encroachment in this area. We do still need
to provide projection in the areas of abuse of power and trust.
4.2 This returns me to the theme of freedom
of speech, where the ability of good investigative journalism
continues to be an essential part of the maintenance of democracy.
Abuse of power and trust will always be an issue we need to maintain
effective defences against. In the process, however, the investigation
itself must be, and be seen to be, fair. We should never forget
that newspapers need to be sold and radio and television listened
to and watched, but in many ways those forms of media have as
must responsibility for accuracy and fairness as those whom they
would seek to expose.
I hope these comments are helpful to the Committee
and will be pleased to add any further information that may be
felt to be useful. I should conclude by saying that the views
in this letter are very much my own rather than those of my firm.
7 February 2003
|
