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Taking privacy seriously: A Statutory Tort? Part 1 – Raymond Wacks

PrivacyI wish I could share Lord Justice Leveson’s confidence in his proposed regulatory body. Trading in the existing PCC for a new model, will doubtless improve the protection of privacy, but neither self-regulation, nor, as I suggested in my earlier post, the common law, take privacy sufficiently seriously.

I continue to believe that clearly drafted legislation is the best way both to protect privacy and to reconcile this right with media freedom. I have no ‘reasonable expectation’ that my exotic cause will attract wide support, but I consider the subject of freedom of expression far too important a constitutional enterprise to be left to the haphazard vicissitudes of ECHR-flavoured case law and media self-regulation.

Common law cloudiness

The new common law cause of action, fashioned from the less than precise phraseology of Article 8 of the ECHR, offers significant, if uncertain, safeguards for privacy. But while it is comforting that the law has, at last, affirmed the existence of an independent right that was previously tethered to the equitable remedy for breach of confidence, its ambit remains unclear. The concept of ‘private life’ is unhappily as vague as the ‘right to be let alone’ that bedevils this question. And the European Court of Human Rights is content that it should be so. Hence, to take only one instance, it was content to include within the scope of Article 8 the right to sleep! (Hatton v United Kingdom (2002) 34 EHRR 37).

The very concept of ‘private life’ in Article 8 invites obscurity and abstraction. This is evident in an early decision of the European Court (X v Iceland Application 6825/74 (1976) 5 DR 86 at 87) that declared:

[T]he right to respect for private life does not end (at the right to privacy, i.e., the right to live, as far as one wishes, protected from publicity). It comprises also, to a certain degree, the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one’s own personality”.

This is disconcerting confirmation of the immense scope of Article 8. To inflate rights is to weaken them. So far there is little evidence of the English courts reading Article 8 in so expansive a manner. But that might simply be a function of the actions that have reached them. But the reality, of course, is that, if presented with such an application, the judges have little choice but to look to the jurisprudence of the European Court, for Articles 8 and 10 are ‘the very content of the domestic tort that the English court has to enforce.’ (McKennitt v Ash [2008] 1 QB 73, [11], per Buxton LJ.)

A statutory cause of action could both simplify the law and, as I suggest later, provide clearer guidance to both the media and the public as to their precise rights and obligations. It could considerably diminish the ambiguity and uncertainty of our rapidly developing law under the nebulous terms of Article 8 of the ECHR. And, as Hugh Tomlinson QC pointed on this blog, it would not necessarily conflict with that article.

What’s wrong with a privacy statute?

My reservations about the state of the common law, and the troubling impact of, in particular, Article 8, will not be widely shared, even if some might agree that legislation would be preferable to its present woolly alternative. In this post, however, my concern is with the (no less) unsatisfactory system of media self-regulation.

The media’s current antagonism towards the Leveson recommendations would be small-fry if faced with the prospect of a privacy statute. Their most obvious—and understandable—objection would be its ostensible effect on freedom of speech. Self-regulation by the media, they would argue, is the lesser of two evils. But this assertion conveniently—and sometimes disingenuously—neglects the conspicuous failure of the PCC and its predecessors to provide adequate protection to or compensation for victims of privacy-invading publications. Among recent descriptions of its performance are ‘a toothless tiger in thrall to its payment’, ‘useless’, and ‘pointless’. The Joint Committee on Privacy and Injunctions declared that the PCC was ‘not equipped to deal with systemic and illegal invasions of privacy.’

Would a beefed up media self-regulatory body perform any better? With its enhanced powers, independence, funding, and statutory support, it may be able efficaciously to handle victims’ complaints. It would have the power to impose

‘appropriate and proportionate sanctions’ (including fines up to 1 per cent of turnover, with a maximum of £1million), on any subscriber responsible for serious or systemic breaches of the standards code or governance requirements of the body. The sanctions would include the power to require publication of corrections, if a breach relates to accuracy; or apologies if a breach relates to other provisions of the code.

In addition, Leveson floats incentives to encourage newspapers to join the proposed new body. They include a ‘kite mark for use by members to establish a recognised brand of trusted journalism’, and an amendment to the rules of civil procedure to require a court, when considering the appropriate order for costs, to take into account the availability of an arbitral system set up by an independent regulator itself recognised by law. Of course, self-regulation has the benefits of economy, speed, and accessibility. But without a doctrine of binding precedent, it is unlikely to have the capacity to develop a coherent or consistent body of principle that affords guidance to the media and the public.

Professor Wacks has been whingeing about privacy and its legal protection for almost four decades. His latest book is Privacy and Media Freedom (OUP, 2013).

This is the first part of a two part post.  Part 2 will be posted later in the week.  Professor Wacks’ draft Privacy Bill can be found here [pdf].

1 Comment

  1. Gavin Phillipson

    Raymond I don’t disagree that a privacy statute would be desirable, but I would make a sizeable wager that it simply won’t happen. No Government would dare – especially given the experience they have now had of the enormous campaign of systematic misinformation re Leveson and the Royal Charter that the press has mounted.

    By the way, re your point on the breadth and vagueness of Article 8 I have argued that the UK judiciary are for this reason very wary of it, which is why they have steadfastly declined to recognise a ‘blockbuster’ privacy Tort and also why they have declined to make any clear, general ruling on common law horizontal effect and indeed almost decided not to decide it. The dicta by Buxton LJ in McKennit are misleading in this regard. See my chapter in David Hoffman’s edited book on horizontality.

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