APPENDIX 74
Memorandum submitted by Barbara Hewson,
Littman Chambers
I write with reference to the Committee's inquiry
into privacy and press intrusion. I should like to draw to the
Committee's attention a report by JUSTICE (the all-party law reform
and human rights organisation) on Privacy and the Law. My Head
of Chambers, Mark Littman QC, co-chaired the committee which produced
this report for JUSTICE in 1970.
It contains a draft Privacy Bill, which the
Committee may find of particular interest, as it shows that there
is no inherent or insuperable difficulty in drafting such a piece
of legislation. The JUSTICE Bill is commendably short.
Obviously, developments in technology, data
processing, and new media mean that some of the factual assumptions
of its report have been overtaken by events. But I believe that
the overall thrust of the report, and its conclusions, have as
much force now as when the report was published.
The Committee will no doubt be aware of recent
developments in the courts concerning privacy, notably the decision
of the Court of Appeal in Naomi Campbell v Mirror Group Newspapers
[2003] 2 WLR 80, on the scope of the Data Protection legislation,
and the extent to which even celebrities retain a reasonable expectation
of privacy in relation to their intimate affairs; and a very recent
ruling from the European Court of Human Rights concerning CCTV
footage of a suicide attempt subsequently being broadcast on television,
which was held to be an invasion of privacy (Peck v United
Kingdom (application no 44647/98), Judgment 28 January 2003).
We live in a confessional age and there is an
understandable tension between the right to respect for private
life, and the legitimate right of the media to disseminate stories
which individuals willingly put into the public domain about themselves.
However, I am concerned at the present lack of proper safeguards
for those whose intimate personal affairs are disclosed to the
world, without their prior permission.
One area of particular concern is the intrusion
of the press and other media into circumstances of private grief.
In these chambers we were particularly struck at the intrusiveness
of the media in its coverage of the Dunblane school massacre,
for example. It cannot be right that those who (through no fault
of their own) are the victims of some terrible tragedy should
be photographed in the throes of deep distress, pressed to relive
the details of their upsetting experience, or forced to haggle
with the press and other media to be let alone on such important
personal occasions, such as funeral services. At present, the
balance seems to lie heavily in favour of the press and other
media. These have immense power compared to ordinary individuals,
who may have no previous experience of dealing with the media,
and whose personal distress may make them particularly vulnerable
to importunate requests.
Another instance is when a private individual
decides to launch a campaign against another private individual,
and enlists the press and other media's help. I have in mind a
case in which I was professionally involved, Hone v Hansell
[unrep, March 2001]. Mr Hone wanted to stop his "ex"
from having an abortion. With the assistance of an anti-abortion
group, he began a high-profile media and legal campaign to pressurise
her into changing her mind. This caused her intense dismay: as
far as she was concerned, this was a purely private matter.
She had to leave her house because of the press
interest, which this campaign attracted. Then Mr Hone let it be
known that he did not know her whereabouts and was very concerned
for her. This only intensified public interest in the situation.
In the end, she had to give a statement to the press, as it seemed
the only way to deflect the intolerable attention to which both
she and subsequently her parents (though no fault of theirs) had
been unwillingly subjected. By that time, highly intimate details
about her private life and her medical situation (including details
of her visit to a "well-woman" clinic) had been put
into the public domain, without her permission.
Situations such as these are undeniably difficult.
But it ought to be possible to enshrine a very strong legal presumption
that the media cannot intrude, or broadcast or publish any matter
pertaining to someone's intimate private life (such as their reaction
to news of bereavement, or their behaviour at a funeral service,
or details of sexual intimacy or of their medical history) without
first obtaining the express permission of the person affected.
It goes without saying that such permission
must be freely given, without undue pressure or threats of any
kind. Permission given in circumstances of "media ambush",
where someone opens their front door to find a horde of photographers,
journalists and cameramen camped on their doorstep, should not
count as "free" permission.
The other difficulty is that once such highly
personal material has been published, there is in practice no
effective remedy for the unwilling subject. Therefore, there should
be some really effective deterrent to prevent the press and other
media simply riding roughshod over a private individual's reasonable
expectations of privacy, on the cynical assumption that there
will be nothing the unwilling subject can do about it, practically
speaking.
As the Peck case shows, once a photo or film
footage goes into the public domain, there may be no limit to
the commercial exploitation that can ensue. It can be transmitted
round the world in an instant, using the Internet.
Therefore, a serious question arises, whether
publication of intimate details without permission should not
now be made a criminal offence, and carry the prospect of a substantial
fine or even imprisonment.
No doubt there would be vociferous objections
to such a course, and the press would complain that this would
impose a "chilling effect" on freedom of expression.
I disagree. Given the enormous disparity in
power between an individual and a powerful news organisation,
it does not seem disproportionate to impose a serious burden on
those commercial organisations who might otherwise be tempted,
for the sake of profit, to ride roughshod over people's reasonable
expectations of privacy and exploit intimate personal details
in the pursuit of commercial gain.
If they want to publish such intimate private
details lawfully, they only have to ask, and to get proper consent.
If they are not prepared to take such simple precautions, they
should pay a heavy price.
7 February 2003
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