Privacy and Injunctions - Joint Committee on Privacy and Injunctions

Privacy and Injunctions - Joint Committee on Privacy and Injunctions Contents

CHAPTER 4: Improving Protection of Privacy

90. There are a series of distinct areas in which the current operation of the law could be further improved. We discuss these in this chapter.

Online enforcement

91. New and digital media present many challenges for enforcing and maintaining privacy injunctions. Injunctions, where appropriately granted, are necessary to protect individual privacy; indeed, they are often the only means of protecting it. If injunctions are to provide adequate protection, it is essential that there are no avoidable barriers to their enforcement. The Giggs case, and other cases, demonstrate that steps should be taken to limit the capacity for online breaches.

92. New media have greatly increased the range and availability of information sources; in addition, technological developments have allowed citizens to become "publishers". Anyone can make his or her views known to the world, or can break their own news. This has obvious benefits for freedom of expression—the role of Twitter in fostering the exchange of ideas and the organisational capability that led to the Arab Spring, for example, is widely documented. At the same time, the internet is also acknowledged to have had far-reaching effects on individual privacy.

93. The removal of the traditional publisher's role of "gatekeeper" gives everyone, through new media, the opportunity to disseminate information, and to express their views. Views on privacy, on the boundaries of private life, and on the nature of the public interest are not universally shared. The internet allows those who have competing views to give effect to them, and to publish information which would not ordinarily be published in traditional media.

94. The global nature of the internet also poses jurisdictional challenges, as much of the material accessed from the United Kingdom is published on servers hosted in foreign domains. We heard from UK-based bloggers whose blogs are physically hosted in the United States, in order to benefit from First Amendment protections there.[103] This is done in order to protect the blog against legal action in the UK which, whilst still possible, would become more difficult and expensive as a result of the overseas hosting.[104]

95. Max Mosley explained how, since his successful privacy action against the News of the World, he had sought to remove videos which breached his privacy from the internet, which required repeated action in numerous different jurisdictions. He had spent over £500,000 on actions in 23 different countries to try to remove offending material from the internet.[105] Nonetheless the offending material can still be found on the web.

96. The proliferation of online media outlets increases the possibility for injunctions to be breached, and offers the potential for injuncted information to be spread quickly around the world. The challenges posed to injunctions were demonstrated in May 2011 when the Giggs injunction was broken by at least one Twitter user and the information repeated as many as 75,000 times. Whilst there are unlikely to be easy solutions to this problem, we have considered a number of practical steps which can be taken to limit the potential for online breaches of privacy and privacy injunctions.

CONTEMPT OF COURT

97. Mainstream newspapers are invariably served with the terms of injunctions granted against newspapers and so usually take care not to breach them.[106] Individuals who reveal information subject to an injunction usually have not been served with it. However, if they publish injuncted information online knowing there is an injunction in place, in principle they run the risk of being held to be in contempt of court.[107]

98. The onus for bringing contempt proceedings in privacy cases lies with the party who sought the injunction in the first place. This is as it should be; having requested the injunction it is primarily for the claimant to enforce it. However, for reasons of cost and practicality claimants are unlikely to pursue every breach of an injunction on the internet. Moreover, an action for contempt of court will add to the publicity about the case, which after all concerns a matter the claimant considers private.

99. There can be difficulties in bringing action in respect of breaches of injunctions online. In the main, these difficulties are due to the cross-jurisdictional nature of the internet, as well as the capacity for anonymous posting from internet service providers which do not easily identify their end-user. However, these difficulties are not always insurmountable.

100. Action can be taken to determine the identity of individuals behind Twitter accounts, and Twitter will hand over the information of account holders when presented with a valid court order.[108] Personal data cannot otherwise be handed over without risk of breaching data protection law. Action has been taken against identifiable Twitter users in a number of recent cases including, for example, prosecutions for racist abuse and hoax bomb threats. Action has also been taken against Facebook users recently, for example, for incitement to riot. The internet is not, therefore, ungoverned by the law, or without enforcement options.

101. Information obtained from content platforms such as these might not always easily identify the end-user responsible for publishing breaches. In addition, action taken to obtain such disclosures of information will add to the cost of the injunctive process, as would any subsequent action for contempt of court.

102. Proceedings for civil contempt of court (the vast majority of proceedings concerning privacy injunctions will be civil claims) can also be brought by the Attorney General in his role as Guardian of the Public Interest. The Attorney General, the Rt Hon Dominic Grieve QC MP, said this is a "reserve power" which would be used only in exceptional circumstances as he is not a party to the proceedings and will not normally have knowledge of individual cases.[109]

103. Whilst not wishing to spend public funds on enforcing civil litigation as a matter of course, the Attorney General said that he might consider bringing proceedings in exceptional circumstances, where there is a clear public interest in doing so and where it is unlikely that anybody else would initiate such proceedings. The examples he gave of when that might happen were if a breach of a civil order was endangering somebody's life, seriously endangering their welfare or if there was a "systematic conspiracy ... to undermine the ability of the civil courts to carry out their work."[110] It was suggested that the single most effective measure for enforcing an injunction which had been widely flouted would be for the Attorney General to bring an action for contempt.[111]

104. We believe the Attorney General should be more willing to exercise his power as Guardian of the Public Interest to bring actions for civil contempt of court in respect of breaches of injunctions online. The threshold for him intervening should be lower. Such action would provide a strong deterrent against future such breaches.

NOTICE AND TAKE DOWN

105. Internet access providers, hosting providers, content platforms and publishers[112] typically operate on a notice and take-down basis. That is, they take down illegal material once they have been notified by a complainant that the material is, for example, defamatory or breaches copyright, otherwise they may be exposed to liability. The same principle applies to material infringing privacy. Companies managing information publication and distribution on a global basis might not always know whether or not information breaches the law in a particular jurisdiction. They therefore await notice from a court or other official entity before reactively taking down prohibited material.

106. Such an approach allows compliance with court orders, whilst also complying with the European Electronic Commerce Directive[113] and preventing internet service providers (ISPs) from having to vet content on the internet.[114] Witnesses representing ISPs and social networks were clear they would remove infringing content if they were to receive a notice alerting them to it.[115] Wikipedia pages can be amended by anyone, and are governed by a community with well-developed policies and guidelines,[116] including compliance with the site's local law in Florida—though we heard evidence that the process is not perfect.[117]

107. Notice and take down is not without difficulties, mainly because of jurisdictional issues.[118] Paul Staines hosts the Guido Fawkes blog in the United States. While hosting in the US may provide some protection for the content on the website owing to the First Amendment, the individual authors and publishers of material can still be subject to the jurisdiction of UK courts. The Attorney General suggested that action might be possible, for example, against an individual blogging in the United States, in defiance of court orders, who subsequently visited the United Kingdom.[119]

108. A new Twitter policy allows the company to filter content on an "in-country" basis. Upon receipt of a court order or notice from an "authorised entity", Twitter can selectively block content in one country, whilst leaving it available to users in other parts of the world.[120] But a careful balance must be struck between protecting privacy and freedom, and Britain should only participate very reluctantly in any restriction on the freedom to communicate over the internet, which is proving such a vital weapon against dictatorship. The "Chilling Effects" website will keep a log of all tweets restricted; viewers in the country where it is blocked will see a grey box displayed in place of the tweet. The intention is to allow Twitter to remain compliant with the law in the domains in which it operates, whilst also providing transparency around the way in which the new policy is operating.[121] In oral evidence to the Leveson Inquiry Twitter appeared to suggest that a ruling from the Press Complaints Commission, as currently established, would not trigger Twitter to remove a tweet.[122]

109. We recommend that, when granting an injunction, courts should be proactive in directing the claimant to serve notice on internet content platforms, such as Twitter and Facebook. Beyond that, claimants in privacy cases should make full use of notice and take-down procedures operated by responsible internet service and social media providers, who should also seek to disseminate best practice and discourage illegality amongst users and other providers.

THE ROLE OF SEARCH ENGINES

110. A weakness of notice and take-down procedures is that some content providers and hosting companies may require separate notice for each individual offending item. In cases where there are many offending items, obtaining such notices could well become a costly and time-consuming procedure.

111. Max Mosley explained the difficulties he had faced in trying to press Google to remove offending pictures from its image search facility—

"Every time an obscure, tiny site in the Andes puts it up, you have to put your lawyers into action to take it down. We had a very high-level meeting with Google in which I said, "Here are the pictures. We know which ones they are. Simply programme your search engine so they don't appear." That is demonstrably technically feasible. They refused to do it as a matter of principle."[123]

112. In response Daphne Keller, Associate General Counsel at Google, said—

"We do not have a mechanism that finds duplicates of pictures or text and makes them disappear from our Web Search results. As a policy matter, I do not think that would be a good idea, simply because an algorithm or a computer programme that tried to do something like that would not have the ability that a judge does or any person does to see the context, to see if a particular phrase is actually appearing in a news report or in political commentary."[124]

113. Ms Keller acknowledged that it might be technically possible to develop algorithms that allow Google to filter in the manner suggested by Mr Mosley in future, but argued that this would not be desirable from a policy point of view, as it would require Google as an intermediary proactively to monitor content on the internet.[125] In addition, she said the European Court of Justice in Scarlet v SABAM[126] had ruled that pro-active monitoring was not required under the Electronic Commerce Directive, and an attempt to require them pro-actively to monitor may not be consistent with the Directive.[127]

114. Where an individual has obtained a clear court order that certain material infringes their privacy and so should not be published we do not find it acceptable that he or she should have to return to court repeatedly in order to remove the same material from internet searches.

115. Google acknowledged that it was possible to develop the technology proactively to monitor websites for such material in order that the material does not appear in the results of searches. We find their objections in principle to developing such technology totally unconvincing. Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology. We recommend that if legislation is necessary to require them to do so it should be introduced.

LIMITING THE CIRCULATION OF INJUNCTION NOTICES

116. In order to appear online, information breaching an injunction may originate from someone who has knowledge of the injunction. At present, it would be difficult to know who the source of the "leak" might be—the options could include a friend of either party, the parties themselves, those involved in the legal process, notified media parties and a multitude of others.

117. Steps could be taken to limit the distribution of injunction notices and consequently limit the number of people who know of an injunction. When issued with an injunction, media bodies will internally distribute it, in order that the injunction is not breached. Circulation of the notice within newsrooms could be limited to senior editors and the legal department.[128]

118. Measures which help to restrict knowledge of injuncted material are to be welcomed, as they reduce the potential for breaches at a later date. We understand, however, that a certain level of knowledge is required in each newsroom in order to ensure that an injunction is not inadvertently breached.

119. When issued with an injunction, media organisations should only circulate the notice to those employees who have authority to publish. An up-to-date list of these individuals should be maintained by each organisation, and made available to the court upon request.

Remedies

120. Once privacy has been breached, it can be difficult to provide a satisfactory remedy, as it is not possible to make the information "private" again. For this reason most individuals would prefer to prevent a breach of privacy occurring in the first place. Injunctions are, of course, one means of doing this; mediation and arbitration may provide another (this is discussed further in the next chapter). Other remedies are available to the courts when someone's privacy has already been infringed.

PRIOR NOTIFICATION

121. Some witnesses argued that when a newspaper plans to write about something which concerns a person's privacy, there should be a legal requirement to inform that person, so that he or she has the opportunity, if appropriate, to seek to prevent its publication, perhaps by obtaining an injunction.[129] This is known as "prior notification".

122. Max Mosley took a case to the European Court of Human Rights claiming that his article 8 right to privacy was infringed by the failure of the UK government to require by law prior notification where a story concerns intimate or sexual details about someone's private life. In May 2011 the Court found that the European Convention on Human Rights did not oblige such a measure, and said that compulsory prior notification would be unworkable and have a disproportionate "chilling effect" on the media.[130]

123. We heard widespread support for prior notification becoming a requirement for editors intending to run a story which compromises an individual's private life.[131] As with other civil actions, the primary remedy once an individual's privacy has been breached is damages. It was suggested that a failure to pre-notify could be considered to be a factor which might justify an award of aggravated damages when they are subsequently assessed by a court.[132]

124. At present claimants seeking a privacy injunction are required by section 12(2) of the Human Rights Act 1998 to notify other parties to the claim of their intention unless there are "compelling reasons" not to notify. It might be considered ironic that such notification is required by the individual, but a newspaper is not required to notify an individual when it intends to publish something about that person's private life.[133]

125. Prior notification is, however, the norm across the newspaper industry. We heard that the times when prior notification is not given are "minuscule".[134] The reasons for not providing prior notification could include preventing the "tipping off" of criminals, and reducing the risk that the story in question might be run by another newspaper.[135] Clearly, in some cases, such as the criminal cases cited by newspapers, there is a public interest in not providing prior notification, though the risk of being "scooped" by a rival publication does not seem to us a relevant public interest consideration.[136]

126. It was suggested that a requirement for prior notification should be contained in the Press Complaints Commission's Editors' Code of Practice.[137] Such a measure was recommended by the House of Commons Culture, Media and Sport Committee in its 2010 report Press standards, privacy and libel, which expressed surprise that prior notification was nowhere mentioned in the Code.[138]

127. We reject the case for a statutory requirement to pre-notify. However, the reformed media regulator's code of practice must include a requirement that journalists should notify the subject of articles that may constitute an intrusion into privacy prior to publication, unless there are compelling reasons not to.

128. If a complaint is made to the new regulator about an individual's right to privacy having been infringed and that individual was not given prior notification of the story, the publication should be required to explain why they did not do so. If it was because it was in the public interest not to, the publication should state how, and with whom, the public interest was established at the time.

129. Courts should take account of any unjustified failure to pre-notify when assessing damages in any subsequent proceedings for breach of article 8.

LEVEL OF DAMAGES AND EXEMPLARY DAMAGES

130. The News of the World was required to pay Max Mosley damages of £60,000, along with a proportion of Mr Mosley's legal costs. This was the largest sum ever paid out in a privacy claim.[139] Naomi Campbell was awarded damages of £3,500 for her successful privacy claim; Michael Douglas and Catherine Zeta Jones £14,600.[140] These sums are small in comparison to awards in other fields of civil law, notably defamation. Mr Mosley was still left significantly out of pocket despite the success of his legal case.[141]

131. Some witnesses suggested that exemplary damages should be able to be awarded in privacy cases.[142] Such damages would not necessarily reflect the harm caused to the claimant, but would be set at such a high level as to deter future privacy breaches. It is doubtful, however, whether on the present law the courts have the power to award exemplary damages for misuse of private information.[143]

132. We heard concerns that the award of exemplary damages might limit the capacity of newspapers to contest a legal action when they believed that they had a clear public interest defence. The threat of exemplary damages could make newspapers, particularly local and regional newspapers, cautious about contesting a case.[144] This would negatively affect their ability to pursue investigative journalism. Moreover, awards of exemplary damages depart from the normal principle that damages should compensate the claimant and not punish the defendant—though they may be awarded in defamation cases.

133. In February 2012, in deciding not to grant an injunction in respect of information about Jonathan Spelman, son of the Secretary of State for Environment, Food and Rural Affairs, the Rt Hon Caroline Spelman MP, Mr Justice Tugendhat suggested that damages awarded in earlier privacy cases, such as Naomi Campbell's, should not be assumed to reflect the limit of the court's powers. He referred to the amounts involved in recent settlements of phone hacking cases.

134. Whilst damages for breaches of privacy are never as good as preventing the breach in the first place, the maximum level of damages that has been awarded is too low to act as a real deterrent. We recommend that the courts should have the power to award exemplary damages in privacy cases, if necessary by giving the courts that power through legislation. In deciding whether to award exemplary damages the courts should take into account the financial situation of the media organisation concerned.

Costs and access to justice

135. The costs of bringing and defending privacy actions are both too high. They have largely increased as a result of case law, with increasing amounts of information being required of applicants and respondents. In addition, due to the nature of the matters at hand, and impending publication deadlines, applications are usually drafted and heard at the last minute, which further increases costs.[145]

136. For claimants, it is apparent that legal redress is beyond the means of most ordinary citizens. Max Mosley spent £510,000 on legal fees on his case.[146] Keith Mathieson, a partner at Reynolds Porter Chamberlain, estimated the minimum cost of obtaining an interim injunction would be £15,000 to £25,000—more depending on the degree of opposition to it. It costs a lot more to take a privacy case to full trial; he said that Rio Ferdinand's costs in his case were about £270,000 or £280,000.[147]

137. The legal costs for respondents can also be significant. Ian Hislop, editor of Private Eye, estimated they had spent £350,000 defending one case, and £75,000 on challenging the super-injunction obtained by Andrew Marr.[148] Mirror Group newspapers spent £160,000 defending Rio Ferdinand's case.[149]

138. Excessive costs limit the ability of newspapers and broadcasters to respond to threatened legal action and can result in them not challenging an injunction on the ground of cost alone.[150]

139. Whilst it is ultimately the approaches taken by the parties to a claim that determines costs, a number of measures can be taken to reduce costs when claims came to court. These include robust case management from judges, limiting the number of hearings and dealing with arguments on paper.[151]

140. There is a power under the Civil Procedure Rules to cost cap. We heard that a practice direction states that the power should only be used in exceptional cases, meaning it is hardly ever used. The practice direction could be removed to allow for more liberal use of cost capping, for both claimants and defendants.[152]

141. The costs of a privacy action are prohibitive to many possible claimants, and can also act to stifle the freedom of the press. Judges and legal representatives must take all possible steps to manage costs more effectively. In particular, we recommend that the practice direction which limits cost capping to exceptional cases should be removed for privacy actions.

CONDITIONAL FEE AGREEMENTS

142. Conditional fee agreements (CFAs) allow cases to be pursued on a "no win, no fee" basis. Most commonly, the claimant is legally represented on the basis that if he or she does not win the case they pay no legal fees. If they win a "success fee" is payable in addition to the normal fees. Often insurance is taken out to cover the costs. CFAs have been used by both claimants and defendants in privacy cases.

143. The Government are proposing significant changes to CFAs in the Legal Aid, Sentencing and Punishment of Offenders Bill, which has been proceeding through Parliament during our inquiry. Because the two Houses have been examining the Bill closely, and because CFAs apply in many areas of law other than privacy, we have not sought extensive evidence on them. However, we here offer some general conclusions based on the evidence of how they have been used in privacy cases.

144. Whilst CFAs are of limited use in seeking injunctions, they are often utilised by clients of limited means who are looking to take post-publication privacy action.[153] They are also used by defendants; Alex Hall explained how, eventually, she had been able to defend her case once she had entered into a conditional fee agreement with a specialist solicitor.[154]

145. For newspapers, CFAs increased the likelihood that they would be placed at risk of legal action. This might be considered to affect newspapers' right to freedom of expression, both in terms of not publishing investigative articles which risk provoking litigation, and of settling claims which they would otherwise defend, due to the fear of excessive costs being incurred.[155]

146. CFAs are defended because they provide a mechanism for people of limited means to exercise their privacy rights. Concern was expressed that the reforms currently proposed by the Government in this area were likely to leave access to justice "significantly curtailed".[156]

147. Access to justice is essential for those whose privacy is infringed. Conditional fee agreements have provided people of limited means with the ability to take action when their right to privacy has been infringed; they have also been used by defendants in privacy cases. We have not sought to enter the wider debate on the future of CFAs, but stress that following the reforms to them it is important that access to justice is maintained for all citizens when seeking to protect their right to privacy.

BETTER REGULATION

148. Most known privacy cases involve wealthy figures, who are often in the public eye. That perhaps is predictable, as these are the types of individuals whom newspapers wish to write about, and the types of person who can afford to go to court to protect their privacy.[157] However, the impact of a privacy invasion for those who are not in the public eye can be just as severe.

149. If individuals who have suffered, or might suffer, an invasion of privacy do not have the means for recourse to legal action, it is essential that there are other avenues for redress available to them. There is a case for a reformed media regulator to play a much greater role in protecting privacy.[158]

150. Many individuals cannot seek redress for a breach of privacy because the legal costs are beyond their means. It is essential that a reformed media regulator provides an alternative route, which is cost free, to prevent and redress breaches of privacy.

151. The following chapter discusses in more detail how a reformed regulator can do that.

103 Q 398. Back

104 QQ 398-400. Back

105 Q 731. Back

106 Though we have heard evidence about "jigsaw identification" by publishers whereby a story about an anonymised injunction is juxtaposed with pictures of or a story about the individual who is thought to have obtained the injunction, so as to give a strong impression to the reader of who has obtained the injunction. Back

107 Q 1078. Back

108 Q 107-10. Back

109 Q 1070. Back

110 Q 1070. Back

111 Q 117. Back

112 For explanations of these terms see the evidence of Nicholas Lansman, secretary general of the Internet Service Providers Association (Q 557). Back

113 2000/31/EC. Back