Privacy: The New Methodology, Part 1 – Sir David Eady

17 12 2011

It is recognised in the United Kingdom that there is a public interest in protecting personal privacy, not least in the light of our various international obligations contained in the International Covenant and in the European Convention on Human Rights.  It is right to say that we still do not have a general free-standing law of privacy.  But we have rules which protect certain aspects of personal life.

In particular, we have a law governing data protection, emanating originally from a European directive, and a statutory law against harassment.  Also, over the last few years, we have been developing and applying some broad principles for the protection of personal information against unauthorised publication.  When an individual citizen seeks to prevent others from publishing details about his or her personal life, the court is faced with weighing up two competing public interests – not merely a private right against a public right.  Judges are now required to adopt a “new methodology” when it comes to balancing the competing values of personal privacy and freedom of speech.  It is necessary to measure the level of the intrusion, which the publication would represent for that citizen, alongside the countervailing public interest in free communication and the right of the public to be kept fully informed – at least on matters in which they have a legitimate interest.

If a judge applies an “intense focus” to the facts before the court, and then carries out the ultimate “balancing exercise” now required in our jurisdiction, that will inevitably involve carrying out a personal evaluation of the importance to be attached to the rights of one or more other citizens to communicate freely with one another.  This is to us quite new, even alarming, and certainly contrary to our tradition.  One of our best known judges of the last century was Lord Denning, who presided over our Court of Appeal from 1962 to 1982, and was frequently heard to say that the guiding principle in such cases was that “the truth will out”.  Where personal privacy is concerned, there is a duty on the courts now to offer a degree of protection largely unforeseen in the time of Lord Denning, and his guiding principle would no longer hold sway.  When the court is asked to protect private information nowadays, because the exercise can be seen as one primarily involving an assessment of “proportionality”, a judge will be faced with the unenviable task of deciding the value to be attached to one person’s exercise of free speech in comparison to the intrusion involved in another person’s private life.  It is not often that the truth of the allegations is going to be relevant.

Sometimes the public interest will require a degree of intrusion into a person’s private life for the purpose, for example, of exposing wrongdoing on the part of a public official or, for that matter, the chief executive of a private company.  It may be that a “whistleblower” or a journalist is seeking to publish information concerning a breach of the law, perhaps financial wrongdoing, failure to pay taxes or siphoning off public funds by way of expenses.  In some circumstances it is accepted that the public interest could even justify revealing at least some details of a personal relationship in order, for example, to expose hypocrisy or nepotism.

Over the last few years, we have been gaining a certain amount of experience of how to handle privacy claims, but it is surprising how very few cases there have been in which the court has in practice had to make an assessment of whether there was a legitimate public interest in the publication of such a story.  I think that is largely because of the nature of our media, and especially our popular press, in England.  We have something called a “tabloid culture”, in which there seems to be an almost infinite appetite for stories about the private lives of “celebrities”.  I am not speaking of public officials or, for the most part, people who are accountable to the public in respect of the conduct of their personal lives.  I have in mind sportsmen, actors and those who happen to be well known to the general public through their exposure on TV “reality shows”, and so on.  The interest shown by our tabloid press, in particular, tends to focus on their “relationships”, which normally means in how frequently they are changing their sexual partners.  When an attempt is made to prevent the publication of such a story, if the “celebrity” manages to get advance notice of it, there is very often little resistance when the matter comes before the court, simply because it is obvious to all concerned that there is no legitimate public interest.  It follows that there is nothing in such cases to put in the scales against the intrusion into private life.  That is what will be given priority – truth or falsehood has little to do with it.

The “new methodology” requires of judges, as I think we are only just beginning to realise, a quite new set of skills and techniques different from those traditionally expected of us.  It involves us more frequently in the making of value judgments rather than in simply following precedents from previous cases.  It is generally the case that no specific rule will provide a definitive answer.  It is a question of assessing which of two or more competing values should be given priority.  It is recognised that there is often in such cases no single right answer.  On the same facts, different judges could very well come to different conclusions according to individual judgment.  That has certain consequences.

First, it means that it is more difficult to appeal such decisions.  All that is required is that the judge asks himself or herself the right questions.  It is difficult to trip up at that stage.  The judge must first ask, in respect of the personal information about to be published, “Is there a reasonable expectation of privacy?”  If yes, he must then go on to ask whether that prima facie right to privacy protection is, in the particular circumstances, to be outweighed by some legitimate countervailing consideration, such as a public interest in exposing wrongdoing or in preventing the general public from being misled.  Or could it be the case that the information can no longer be regarded as private or confidential in any event, since it is already in the “public domain”?  Or is it necessary for the information to be published, despite its intimate nature, in order to prevent the public from being misled by some earlier public pronouncement of the person concerned because, for example, it reveals him or her as a hypocrite?

If the judge produces a carefully reasoned and conscientious answer, an appeal court would be unlikely to overturn it.  Sometimes there will be a wide scope for differing personal judgments about such matters and, specifically, where the priorities should lie.  The mere fact that an appellate judge might have come to a different conclusion would not be a sufficient reason for overturning the earlier judgment.

Another closely related consequence of this methodology is that it is easier to represent such decisions or outcomes as personal in nature (rather than specifically judicial).  Take a case where an injunction has been granted, as a result of a personal evaluation of competing rights, and it restricts an individual or a publisher from covering a particular story (perhaps potentially a very lucrative one).  It is hardly surprising that the publisher (effectively deprived of an opportunity to appeal) will turn his attention to attacking the judge personally.  In such circumstances, it is easier to attack the individual than to attack the law itself (which may seem very elusive to lay observers).  When judges simply interpreted and applied the law, they were seen more readily as merely instruments through which the law was operating and, accordingly, any criticism could be directed at the legal principles – to be accompanied, perhaps, by calls for legislators to reform them.

So those are two of the consequences of our new methodology (if not exactly unintended, at least largely unanticipated at the time when the Human Rights Act was passed).

Another major consideration is that of unpredictability.  The law should, so far as possible, be sufficiently clear for citizens to be able to make a prediction, if necessary with the advice of lawyers, as to the likely legal consequences of any proposed course of action.  That is an aspiration fully endorsed by the European Court of Human Rights in Strasbourg in a number of cases:  see e.g. Goodwin v UK (1996) 22 EHRR 123.  Yet it has to be recognised that the new methodology of balancing competing Convention rights, and coming up with a solution on the particular facts of the case, inevitably leads to a degree of uncertainty.  Of course, if you are an advocate of the new system, you call it flexibility.

It is becoming apparent, however, that there is really no other way of dealing with privacy cases, whether before or after the offending revelation takes place – despite these disadvantages.  In the United Kingdom at the moment a Parliamentary Committee is taking evidence and discussing the subject of privacy and injunctions.  One of the questions they ask the “witnesses” is whether greater clarity and predictability would be achieved by the implementation of some (unspecified) statutory rules to define when “public interest” should prevail over an individual citizen’s privacy.  The response is generally negative.  That is quite simply because of the infinite variety of circumstances that present themselves to the courts.  It would not be possible to predict all the scenarios in advance by detailed statutory micro-management.  It has become clear that it is not practical to do more than identify the general principles and leave each case to be determined by a balancing exercise tailored to the case in hand.  This means some uncertainty of outcome.  But that would also be true if the guiding principles were set out in statutory form.

In the long established law of defamation, there was also room for a degree of uncertainty.  If there were not, there would never be any need for contested cases to be tried.  But essentially the rules were clear and it was possible to give reasoned advice to clients – without simply saying “It’s up to the judge”.

Of course there could be room for disagreement in defamation cases over whether the allegations were actually defamatory.  Did they lower the claimant in the eyes of “right-thinking members of society”?  But the test was at least clear.  There might also be an issue in a libel action as to whether the defamatory words were true.  If they were, then that would be a complete defence.  If there was disagreement between the parties, the judge or sometimes a jury would hear the evidence and make a decision.  If the defamatory words were an expression of opinion, then again there would be a complete defence unless the claimant could show that the defendant was dishonest, in the sense that he did not actually believe what he was saying.

But clear-cut rules do not work so well in the context of infringement of privacy.  The mischief which the law aims to control or prevent is obviously not that of inaccuracy, but of intrusion.  It is thus generally immaterial whether the allegations are true or false.  What may (or may not) render it unlawful is the intrusion into certain kinds of subject-matter – such as health or personal relationships.  If you say of someone that he has a heart condition, or that he is suffering from cancer, that is in itself an intrusion into a private area.  The claimant should not be forced to say, in the course of the litigation, whether it is true or false.  That would be to play the game of the intruder.

On the other hand, there may on occasion be genuine considerations of public interest that come into play and outweigh the right to privacy in the particular circumstances.  A hypothetical example which is often quoted is that of Winston Churchill.  It was certainly the case in 1953, when he was still Prime Minister in the United Kingdom, that he was suffering from the after-effects of a stroke for several months and thus incapable of carrying out the duties normally expected.  (At the time, he was 78 years of age.)  Despite this, there was an agreement behind the scenes, which the general public did not find out about for some years thereafter, that the information would be suppressed by the newspaper proprietors.  It is nowadays inconceivable that this would happen, and I cannot believe that the law would ever be used in our jurisdiction to cover up information of that kind – albeit relating to an individual’s health and wellbeing.  The critical factor which would justify such intrusion is the capacity or incapacity of that individual for carrying out the duties of a public office.  That would be regarded, in modern times, as a matter of legitimate public interest.

It is true that judges have had in the past to make personal judgments or evaluations in certain areas, most notably as between “competing” parents in determining with whom a child should reside following a breakdown in a marital relationship.  That would involve a judgment as to where the child’s best interests lie.  Somebody has to decide, and we are used to placing that responsibility in the hands of a specialist judge.

What is a new experience for us is to have judges deciding to what extent an individual, or a journalist or media group, should be allowed to exercise what we tended to regard as an inalienable right of free speech.  In the past, when the court was asked, occasionally, to grant an injunction to prevent publication of a particular story, the task of the judge was to decide whether the publication would be unlawful according to well established criteria.  Would the story be genuinely damaging to the claimant’s reputation?  If so, that would mean that then publication would be prima facie unlawful because it would involve the tort of defamation.  On the other hand, if the defendant claimed that the allegation was true, that would be the end of the matter.  No injunction could be granted, unless the judge was satisfied that the allegations could be shown definitively to be untrue.

 Sir David Eady is a Justice of the High Court.  This is the first part of a talk given as part of the Great Britain China Centre project, “EU-China promoting legal protection for the media” at a Seminar on Personality Rights Legislation, delivered in Beijing on 12 December 2011


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19 12 2011
Law and Media Round Up – 19 December 2011 « Inforrm's Blog

[…] Privacy: The New Methodology, Part 1. The first half of Sir David Eady’s talk given as part of the Great Britain China Centre project, “EU-China promoting legal protection for the media” at a seminar on personality rights legislation. […]

20 12 2011
Privacy – The “New Methodology”, Part 2 – Sir David Eady « Inforrm's Blog

[…] on Personality Rights Legislation, delivered in Beijing on 12 December 2011.  The first part was posted on 17 December 2011. Share this:PrintEmailTwitterFacebookLike this:LikeBe the first to like this […]

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