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Lord Hailsham of Saint Marylebone: My Lords, I intervene in this interesting discussion to make two points. First, we are signatories to the European Convention on Human Rights, and that convention includes a right of privacy. Secondly, the European Convention on Human Rights, on the matter of privacy, does include a public interest exception. I draw the conclusion which I believe follows from those two observations.
Lord Mishcon: My Lords, that brief intervention was extremely valuable. I follow the line that my noble friend Lord Irvine of Lairg took for a very different reason. Before I develop that reason, perhaps I may raise one very small point; it may be completely incorrect. I had no opportunity of putting down an amendment on this possibly trivial matter, but I owe it to the noble and learned Lord at least to draw the matter to his attention. Clause 13(2) (a) of the Bill contains the words,
Slander does not of itself amount to malicious falsehood. Libel does not of itself amount to malicious falsehood. It is an entirely separate tort which is meant to cover the situation where someone deliberately tells a falsehood and does so maliciously so as to cause harm. Therefore, it being a separate tort, I do not understand the word "other".
Having made that minor technical point, I turn to the root of the amendment. I oppose the amendment because I should like us in this country to have experience of actions which protect the privacy of the individual. I say that because I hope it will encourage any government, whatever their complexion, to bring in a law of privacy.
Many of us realise that men in public life have some sort of reputation which has to be kept. All of us who are in public life realise that. This country suffersas do many other countries, including the United Statesfrom the fact that you will never get men and women of calibre, who are capable of serving their country well, when their rights of privacy are from day to day absolutely despoiled in the press.
Lord Mishcon: We have experienced enough for me not to give examples. There are people who are capable of public service in this country who have been not only embarrassed by publicity but hounded out of office as a result of it. I therefore hope that if we have experience of foreign laws that protect individualsmatters of public policy and public interest exceptedwe shall then say (we may not follow fully the example of France which was given by the noble Lord, Lord Lester) that in our own way we shall carve out a proper law of privacy to enable people of ability and repute to know that their
The Lord Chancellor: My Lords, I, too, seek to oppose the amendment proposed by the noble Lord, Lord Lester of Herne Hill. So far as the first part of the amendment is concerned, I consider that the amendment adopted by the Committee is sufficiently wide to cover with sufficient precision the area of defamation, and claims like defamation, which it was thought right to exclude from the general provisions of this part of the Bill. The general principle of this part of the Bill has been to depart from the rule of double actionability which hitherto prevailed in such claims and to use the appropriate applicable law, that law to be determined in the light of the circumstances set out in Clauses 11 and 12 of the Bill.
The Committee that deliberated on this Bill decided that it was wise to give quite a considerable amount of flexibility to the court of the forum by allowing not only the whole case to be the subject of consideration in relation to an applicable law but also separate consideration of whether any particular issue arising in the case should be dealt with by a different applicable law from that which might apply to another issue in the case. So a very flexible system has been set up under this Bill in accordance with the views of the special Committee that dealt with it in detail.
Against that background it seems to me that clear principle is required if one is to make an exception. Having considered this matter carefully, the Committee concluded that it was wise to make an exception in respect of defamationit received quite cogent evidence on that pointin that statements made in this country might well infringe defamation laws in other countries; and that it was accordingly wise, in the light of the circumstances with which the industry is faced, to make such an exception. In fact, that exception, as approved by the Committee, goes beyond what was inserted by the Law Commission. It is a wider exception than the Law Commission proposed. That having been done, I submit that that is where it should stop.
So far as concerns the amendment of the noble Lord, Lord Lester, your Lordships will see that it does not depend on anything to do with statements. The latter part of his amendment concerns infringements in relation to privacy and confidentiality. In my submission, it would be quite wrong, having regard to the general principle to which I referred, to give effect in this Bill to that amendment.
I have recently looked at the Morris v. Beardmore decision in this House in connection with attempts by the police to go into a private residence. It is a case that has recently been referred to by Anthony Whittaker in The Times as having possibly been lost sight of in the debates about privacy in this country. But the noble and learned Lord, Lord Scarman, said in that case (recorded at page 464 in 1981 Appeal Cases)which is related, as I said, to the question of police officers entering a private house
The noble and learned Lord then quotes those words and goes on to refer to the European Convention on Human Rights. So, the common law of England has long recognised a right to the privacy of one's home. I submit that it would be quite wrong to exclude privacy in the way proposed by this amendment. The way in which the Bill has been dealt with by the Committee amply protects any right of that kind.
The noble Lord, Lord Lester of Herne Hill, once more used a phrase which attracted a certain amount of attention when he used it last. He spoke of "chilling" the press of this country. I believe I am right in saying that in his concluding example he suggested that under this Bill the Indian lady could have required the courts of this country to prevent a film with the kind of subject matter of the case in Delhi from being shown here. So far as that goes, this Bill is concerned with events that happen outside this country. It is in different law districts of this country or outside the country that the matter would arise. I believe that the Bill has been left in an appropriate state by the Committee. This amendment goes too far in trying to restrict the principle of the Bill.
I am grateful to the noble Lord, Lord Mishcon, for drawing my attention to the use of the word "other". I should like to consider that point carefully. We may possibly return to it at Third Reading. It is the kind of issue that might be appropriate for that occasion. In the meantime, I urge your Lordships not to accept this amendment should the noble Lord decide to press it to a Division.
In the course of his remarks, the noble Lord, Lord Lester, made reference to certain decisions of the Government. Obviously, he knows more about those than I do. The question of what should be the law in this country is a matter of concern but different from the particular matter with which we are concerned today.
Lord Ackner: My Lords, before my noble and learned friend sits down, perhaps I may say on the matter raised by the noble Lord, Lord MishconI invite consideration of this pointthat the word "other" was used in relation to slander of goods. I have a very dim, distant and therefore probably wholly unreliable recollection that in regard to that tort malice is required.
The Lord Chancellor: My Lords, I am grateful to my noble and learned friend. That is probably in accordance with the authorities as they still stand, notwithstanding the length of time to which my noble and learned friend referred. There may still be a question
Lord Lester of Herne Hill: My Lords, I feel that I owe some kind of apology to those noble Lords who are not legally qualified and may find this discussion somewhat difficult to follow. Certainly, for myself, this has been an important and interesting debate.
Let me say first that I agree with the noble Lord, Lord Irvine of Lairg, that the way forward in protecting the right to privacy in this country is through effective voluntary machinerythe Press Complaints Commissionand the development of common law. The case of Morris v. Beardmore referred to by the noble and learned Lord the Lord Chancellor, and, I believe, the speech of the noble and learned Lord, Lord Keith of Kinkel, in the Spycatcher case, indicate that there is potential for growth in the common law in further protecting privacy, including media intrusions of privacy. So it is common ground that there is scope for development of the common law and the use of the Press Complaints Commission. So the real issue is about what our courts and laws should do where a foreign privacy law goes much further than would the developing English common law.
It is probably my own lack in grasping what has been said, but I continue not to understand at all the difference in principle between disallowing foreign libel laws where they do not match English libel law on the ground that foreign libel laws menace free speech unnecessarily and yet allowing foreign privacy laws which are not matched by English privacy laws, even though they too might, in a particular case, menace free speech law unnecessarily. It seems to me that both kinds of interference with free speech are simply different forms of interference arising from foreign laws. I fail to understand the principle which indicates why one should be excluded and the other admitted even though there is a mis-match between the foreign system and the English system.
The noble and learned Lord, Lord Hailsham of Saint Marylebone, drew attention to the European Convention on Human Rights which guarantees both the right to privacy and the right to free speech. But that by itself does not provide adequate guidance to English judges, even if it were part of our law, as to how to deal with the problem that the amendment raises. I should make clearit is a defect in the amendmentthat the amendment is intended to cover only statements made by the media in this country of exactly the kind that troubled the noble and learned Lord the Lord Chancellor in relation to the law of defamation.
I should like to reflect on all that has been said in the course of this short but interesting debate and consider whether there is any need to return to the matter at a later stage. In the meantime, I beg leave to withdraw the amendment.