The Prime Minister said last week that he was “uneasy” about the development of a privacy law by judges based on the European Convention when this should be a matter for parliament.  In our contribution to the continuing debate on this issue we are re-posting an updated version of  this series from last year on the way ahead for privacy law.   Part 1 looked at the outline of the new law.  This part considers the historical background.

Introduction

The “new law of privacy” has not been uncontroversial.  Over the past week the press has complained bitterly about “gagging orders” and “judge made law”.  These criticisms are not new.  More than four years ago, with characteristic restraint, the commentator Melanie Phillips described the process of the development of privacy law in these terms:

“Driven by a deep loathing of the popular press, the judges have long been itching to bring in a privacy law by the back door. Thus free speech is to be made conditional on the prejudices of the judiciary …” (Melanie Phillips, “The law of human wrongs”, Daily Mail, 6 December 2006)

Her editor at the Mail, Paul Dacre, has been equally firm in his views:

“insidiously, the British Press is having a privacy law imposed on it, which – apart from allowing the corrupt and the crooked to sleep easily in their beds – is, I would argue, undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market” (Paul Dacre, Speech to Society of Editors, 9 November 2008, p.5).

He went on to say

“This law is not coming from Parliament – no, that would smack of democracy – but from the arrogant and amoral judgements – words I use very deliberately – of one man. I am referring, of course, to Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places” (Ibid)

I will not discuss the merits of such criticisms in this post.  I have already drawn attention in Part 1 to the point that Parliament knew what it was letting itself in for when the Human Rights Act was passed: no one who is familiar with the Parliamentary (and press) debates of the time can be surprised by what has happened.

The personal criticism of Mr Justice Eady is also ill-conceived. I also mentioned in Part 1 that he was not party to any of the major decisions which formed the new law – which were decisions of the Court of Appeal and the House of Lords. The trial judges in Campbell v MGN and Douglas v Hello! were, respectively, Mr Justice Morland and Mr Justice Lindsay.  A large number of judges – from the House of Lords downwards, male and female – have been involved in the development of the law of privacy.

There is however a deeper point being made by the critics of privacy law: that generally accepted moral standards should determine the extent to which private information can be published.  Put shortly, the point is that adulterers deserve exposure in the press.   There are a number of difficulties with this point – not least with the notion of “generally accepted moral standards”.   If the law is to be changed in that direction then radical reform is required.  This will be dealt with in Part 3.  In this post I want to look at some of the history – the new law of privacy has to be understood in the context in which it has been developed.

The History of Privacy Reform Proposals

For many years campaigners and commentators drew attention to the absence of a proper privacy law in the United Kingdom.   Active consideration of the enactment of a privacy law goes back at least 50 years.  Private members bills were introduced in 1961 and 1969 but neither went beyond a second reading.  In July 1972 the Younger Committee (Report of the Committee on Privacy, Cmnd. 5012, HMSO,1972) did not support the introduction of a tort of invasion of privacy, concluding that the word could not even be defined satisfactorily (Ibid, para 660). It suggested that reliance should be placed on self-discipline by the media (Ibid, para 656).

Self-discipline was, unfortunately, not exercised. By the late 1980s opinion polls suggested that a large majority of the public believed that the press intruded too much into the lives of public figures.  In 1989, after two private members’ bills concerning privacy completed the House of Commons Committee stage, the Government set up a Committee chaired by Sir David Calcutt QC (and including Mr David Eady QC and Mr Simon Jenkins) to investigate press behaviour in relation to personal privacy.

Whilst the Calcutt Committee was deliberating the case of Kaye v Robertson ([1991] FSR 62) came before the Courts.   A reporter and photographer from the recently deceased “Sunday Sport” invaded the hospital bedroom of a popular actor who was in a coma after an accident, purported to interview him and took photographs.  The Court of Appeal expressed concern about the absence of a privacy law to provide protection in these circumstances.  Glidewell LJ said

“The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals.” (at 66).

 Bingham LJ said,

“The problems of defining and limiting a tort of privacy are formidable but the present case strengthens my hope that the review now in progress may prove fruitful.” (at 70).

However, when the Calcutt Committee reported it produced a compromise: it did not recommend a statutory tort of invasion of privacy but spelled out how the tort might work if that route was taken (Report of the Committee on Privacy and Related Matters, Cm. 1102, HMSO, 1990). It proposed improved self-regulation, replacing the Press Council by a new Press Complaints Commission. This was given a probationary period of 18 months. The Committee warned that if the PCC did not function properly during this period this would be a “clear sign that self-regulation cannot work effectively”.  In that event, it recommended, a statutory body with power to order publication of apologies, payment of compensation and to grant injunctions should be established. Mr David Mellor famously quipped that the press were “drinking in the Last Chance Saloon”.

In January 1993, Sir David Calcutt published a follow up report (Review of Press Self-Regulation, Cm 2135, 1993). He concluded that self-regulation had failed. He recommended that the PCC should be replaced by a statutory body and that the Government should give further consideration to a new tort of infringement of privacy. In response, reports from the Lord Chancellor’s department (Joint Consultation Paper with the Scottish Office, Infringement of Privacy (HC 291-1, 1993)) and the National Heritage Select Committee (Fourth Report, Privacy and Media Intrusion (1993)) supported the creation of a new tort of infringement of privacy.

Nothing was done: there are, apparently, no “last orders” at the “last chance saloon”, drinking can continue indefinitely. Two years later, the Government published a further report suggesting that, in the light of further efforts in self-regulation and the continuing development of the law there was no need for legislation (Government Response to the National Heritage Select Committee, Privacy and Media Intrusion, Cmnd. 2918, 1995).

As mentioned in Part 1, the “privacy” issue caused considerable anxiety in media circles when the Human Rights Bill was before parliament: in addition to Lord Wakeham’s amendment, the press suggested a provision giving them immunity from the provisions of the Act or the removal of Article 8 from the incorporated rights. Instead, the Government inserted section 12 of the Human Rights Act: this provides that the courts had to have “particular regard” to the right to freedom of expression and could not grant interim remedies unless satisfied that the applicant is “likely to establish that publication should not be allowed”. This places a higher hurdle in front of privacy injunctions than that which applies in other cases (where it is only necessary to show a “serious issue to be tried”)

The enactment of the Human Rights Act did not conclude the “privacy debate”. In its 2003 report, “Privacy and Media Intrusion” (Fifth Report of Session 2002-2003, HC-458-I, 16 June 2003) the Culture, Media and Sport Committee concluded that

“we firmly recommend that the Government reconsider its position and bring forward legislative proposals to clarify the protection that individuals can expect from unwarranted intrusion by anyone – not the press alone – into their private lives. This is necessary fully to satisfy the obligations upon the UK under the European Convention of Human Rights. There should be full and wide consultation but in the end Parliament should be allowed to undertake its proper legislative role” (Ibid, para 111).

This recommendation was firmly rejected by the government which expressed the view that

“The weighing of competing rights in individual case is the quintessential task of the courts, not of Government or Parliament, Parliament should only intervene if there are signs that the courts are systematically striking the wrong balance; we believe there are no such signs.” (“Privacy and Media Intrusion”, The Government’s Response to the Fifth Report of the Culture Media and Sport Select Committee, Cm 5985, October 2003)

Put shortly, the Government favoured the very thing which has, in fact, happened and which recently has given rise to Mr Cameron’s “unease”: the development of privacy law by the Courts.

Four years letter, a differently constituted Culture, Media and Sport Committee in 2007 took a rather different view, now agreeing with the Government in opposing a privacy law:

“To draft a law defining a right to privacy which is both specific in its guidance but also flexible enough to apply fairly to each case which would be tested against it could be almost impossible. Many people would not want to seek redress through the law, for reasons of cost and risk. In any case, we are not persuaded that there is significant public support for a privacy law” (Seventh Report of Session 2006-07, HC 375, 11 July 2007, para 53).

The House of Commons Culture Media and Sport Committee returned to the topic less than 3 years later. The Committee in its 2010 Report (see our post here) concluded that it was not right, at that time, to legislate on privacy. It recommended that the PCC should however amend its Code to include a requirement that journalists notify the subject of their articles prior to publication, subject to a “public interest” test.  It also recommended that new statutory rules should provide that aggravated damages should be available where no prior notification is given to the target. Given that under section 12 of the Human Rights Act the Courts must have regard to any privacy code, such provisions together should have a significant effect.

Conclusion

As this brief history shows, although the views taken by the Government and Parliament have not always been consistent, in the end they have preferred to leave the thorny issue of privacy to the judges – to decide on a case by case basis. However, as we know, this has not proved popular with the press.  In the final part of this post I will consider the possible “ways ahead” for privacy law.

Hugh Tomlinson QC is a member of Matrix Chambers and of the Inforrm Committee.