David Elstein’s recent article ‘Privacy, super-injunctions and Twitter: what should we do?’ argues that the Human Rights Act (“HRA”) left unresolved the tension between privacy and freedom of expression. He concludes that “the only solution is new legislation”. However, the HRA already contains the framework for balancing these rights. Surprisingly, Elstein’s piece does not mention the free speech framework (section 12 HRA) introduced into the HRA at the behest of the former Chair of the Press Complaints Commission, Lord Wakeham.

Elstein omits any discussion of section 12, which applies where a court is considering granting an injunction. This provision requires the courts to “have particular regard to the importance of the Convention right to freedom of expression” and where proceedings relate to journalistic, literary or artistic material, “to the extent to which…it is or would be in the public interest for the material to be published”. Interim injunctions should not be granted to prevent publication, it says, unless the court is satisfied that the applicant is likely to be successful at a full trial. In a case at the House of Lords (the predecessor to the Supreme Court), which set aside the controversial part of an injunction, Lord Scott said “the proper judicial approach to [section 12] is one of great importance”.

Both the right to freedom of expression in Article 10 HRA and the right to respect for private life in Article 8 HRA can be limited as is necessary in a democratic society to protect the rights of others or the wider needs of the community (such as national security). So where a newspaper wishes to publish information about an aspect of an individual’s private life and the individual wishes to protect that private information, and the rights of others involved (such as children), the court will have to balance those two rights, and have particular regard to the importance of freedom of expression.

Clearly, the HRA already contains the framework to balance the right to respect for private life against the right to freedom of expression, which goes further in the direction of the latter than the European Convention on Human Rights (“ECHR”). There has to be a body to adjudicate between these rights where they conflict and Parliament has tasked the courts with interpreting and upholding them in the particular circumstances of the case. Regardless of disagreement about how the courts have gone about this in particular cases, it is important to recognise that there is a framework for protecting these two fundamental rights in the HRA which gives particular weight to free speech prior to publication.

Shadow Justice Secretary, Sadiq Khan, acknowledged at a lecture at the LSE recently that “there does seem to be a problem with the way the law has been interpreted and some legitimate concern that issues which are genuinely in the public interest, rather than just interesting to the public, are being unduly protected by injunctions” but he went on to insist that “this should not be a pretext for throwing more mud at our human rights laws.” And as  Lord Justice Stephen Sedley has implied, there are vested interests involved in this debate which exceed any concerns about the appropriate balance between conflicting rights.

The courts have a constitutional obligation to make [the right under Article 8] effective. What the tabloids do not like about it is that the law now recognises that celebrities too have aspects of their lives that are private.

Elstein writes that injunctions blocking publication of newspaper stories are “routinely granted”. The evidence does not bear this out. Excluding the injunctions granted to protect children or vulnerable adults, which he accepts are legitimate and appropriate, there have been 69 injunctions in 5 years, according to the Independent. Of these 69, only 28 concern men accused of extra-marital affairs – the source of much of the current controversy – a much smaller number than the recent brouhaha would suggest. The 69 injunctions also include those where convicted criminals have been granted anonymity and presumably also include injunctions granted to prevent criminal trials collapsing, as in the recently re-opened Stephen Lawrence murder case. The Independent concludes that the data highlights the importance of anonymity orders as at least 6 of the 69 cases concern allegations of blackmail.

The number of ‘super-injunctions’ (where the fact of the injunction itself is subject to secrecy) granted in the last five years is small; reported to be between 10 and 12. The ‘Report of the Committee on Super-injunctions’, by Lord Neuberger and others, published in May, found that since the John Terry case in January 2010, only two super-injunctions have been granted to protect private information – one was set aside on appeal and the other was only for 7 days and for ‘anti-tipping-off’ reasons. The report found that super-injunctions are now rarely applied for and rarely granted.

Elstein writes that temporary injunctions are seldom brought to resolution, something addressed by the Neuberger report, which acknowledges that until early 2010, there were justifiable concerns that a form of permanent secret justice was beginning to develop. But the report concludes that these concerns should be dispelled by the Terry case, which set out the requirement that super- and anonymised injunctions must generally contain return dates, to ensure that they cannot in practice become permanent except in “very, very rare cases where it may be justified”.

Excluding the media from HRA?
Elstein refers to Lord Wakeham’s letter in the Daily Telegraph, and his suggestion that the HRA may have to be amended to limit the role of the courts to dealing only with public authorities and the state, to “leave the media outside the direct supervision of the courts on privacy issues”. However, complying with Lord Wakeham’s suggestion may result in more challenges against the UK at the European Court of Human Rights in Strasbourg. Removing this responsibility from the courts does not exempt the government from its duty to uphold the privacy rights of individuals even when private bodies may be involved, raising the possibility of damages claims in Strasbourg.

Further, whilst it may be arguable that when the ECHR was written in the aftermath of WWII the chief threat to private life may have been the state, there is now widespread agreement that parts of the media pose a different but real threat to private life. The recent phone hacking scandal by the News of the World is a good example of this. It is often overlooked that the legislation used to secure the conviction of the NoTW’s private investigator in this scandal, the Regulation of Investigatory Powers Act 2000, was a direct response to the HRA. It was passed just before the HRA came into force in October 2000 to ensure that law agencies had a framework for surveillance that was compliant with the rights set out in the HRA.

The fact that the media have benefitted a great deal from the protection of Article 10 also often goes unreported. For example, the public interest defence for journalists in libel cases has been bolstered; access has been granted to the media to hearings in the Court of Protection, when such hearings had previously been closed; anonymity orders made under terrorism legislation have been set aside to protect the media’s right to free expression; and the right to receive information under Article 10 has been expanded.

Privacy rights only for some?
For Elstein it is “unfortunate” that judges cannot take into account the fact that only the wealthy are able to take advantage of their reading of the HRA and the fact that Ministers can’t ask judges to interpret the HRA differently, means that “only a revision of the Act can get politicians and the judiciary out of the fix they are in”. One reading of these comments is that there are certain groups who should be excluded from claiming certain rights (an approach that may find favour with some critics of the HRA). But the point of universal human rights is just that – they are universal and apply to everyone. If “rich male hypocrites” are excluded from protection under Article 8, who else could be excluded? Unpopular minorities?

However, it is not only celebrities who have benefited from the right to respect for private life in Article 8. The right has been relied upon by a mother and her children who were ‘snooped’ on by their council to determine whether they lived within a school catchment area; a media co-ordinator for the organisation Campaign Against Arms Trade who was photographed by the police leaving a meeting; those suspected but not convicted of offences who had their DNA and fingerprint evidence indefinitely retained; those stopped and searched by police without the need for reasonable suspicion, to list just a few examples of cases where a breach of Article 8 has been found. More recently, a coroner refused to read out a 12 year old boy’s suicide note, citing his mother’s right to privacy under Article 8. Tinkering with the right to private life in the HRA will affect a much wider group of individuals than just celebrities.

Obviously, the fact that celebrities receive more attention from tabloids means they will have more recourse to protect their private lives. But an additional reason why most people who take cases are rich, is the absence of legal aid for non-criminal cases, which has nothing to do with the HRA itself and is not specific to privacy. What is required is an extension of legal aid provision, something which is rarely heard from the media who criticise the HRA but barely covered the likely impact of the proposed Ministry of Justice cuts to this provision. Of course, adjudication by the Press Complaints Commission – whose Code of Practice adopts the ECHR framework on privacy – would be considerably cheaper but there are obvious difficulties with this. There is a wealth of commentary on the problem of a media-dominated body becoming the prime regulator on media privacy issues given the obvious self-interest of newspapers publishing stories which enhance sales, regardless of their impact on the private lives of the individuals concerned and, more importantly, often their children and other family members.

The apparent resolution according to Elstein, is that “it is for the press and public between them to decide what should be published and for anyone libelled or otherwise damaged by publication to take their case to court”. He quotes approvingly the First Amendment approach of the US Constitution which favours free speech over most other rights. The implications of this for legislation regulating adverts, party political expenditure, harassment and race hate speech – generally popular measures in the UK – is not explored.

Elstein cites with favour the “European Court of Justice” refusal, in the Max Mosley case, to introduce the concept of advance notification by newspapers of intention to publish material affecting the private life of individuals, an approach he says is consistent with that of the US courts. In fact, this was a European Court of Human Rights decision under Articles 8 and 10 ECHR, the very same articles Elstein would like re-visiting under the HRA!

Helen Wildbore is research officer for the Human Rights Futures Project at LSE.

This article was originally published on Open Democracy website and is reproduced with permission and thanks.