In the first part of this post, Professor Wacks argued that a statutory privacy case of action would simplify the law. In this second and concluding part he deals with a number of objections which have been raised to the enactment of a statutory tort of privacy.
Any privacy statute would obviously need to provide a defence that publication is in the ‘public interest.’ But the very idea of providing a workable definition of ‘public interest, by statute or otherwise, immediately raises major apprehensions.
The concept, it is frequently argued, is incapable of definition – whether it is a matter for legislative, judicial, or regulatory resolution. Typical of this sort of anxiety is the approach adopted by the Government’s consideration of a statutory definition of ‘public interest’ in the draft Defamation Bill in respect of the so-called ‘Reynolds defence of ‘responsible journalism.’ In rejecting the proposal, the Consultation Paper asserted:
“We believe that this is a concept which is well-established in the English common law and that in view of the very wide range of matters which are of public interest and the sensitivity of this to factual circumstances, attempting to define it in statute would be fraught with problems. Such problems include the risk of missing matters which are of public interest resulting in too narrow a defence and the risk of this proving a magnet for satellite litigation adding to costs in relation to libel proceedings”.
Similar anxiety is echoed by the Joint Committee on Privacy and Injunctions:
“We conclude that a privacy statute would not clarify the law. The concepts of privacy and the public interest are not set in stone, and evolve over time. We conclude that the current approach, where judges balance the evidence and make a judgment on a case-by-case basis, provides the best mechanism for balancing article 8 and article 10 rights”.
And the Leveson Inquiry Report echoed this view.
But this difficulty is overstated; there is no need for unqualified exactitude here, nor is it possible. The very concept of ‘public interest’—either normative or descriptive—is inescapably protean. A descriptive test looks to ‘social mores’, and is likely to transform social norms into community expectation. If the law protects what is socially accepted as private, the public conception of ‘private facts’ are formed by what is in fact made public; and the more privacy is invaded the less privacy is protected. Thus an increase in the public appetite for titillating gossip and, hence, anxiety about privacy declines: publications hitherto regarded as seriously offensive will ultimately become socially acceptable.
A normative test is only slightly less problematic. It casts as moral guardians those charged with assessing the merits of a publication. Neither test therefore satisfies the requirement of neutrality, or at least objectivity. An element of normativity, however, seems unavoidable when the boundaries of media freedom are drawn. So, for example, the European Court of Human Rights in von Hannover v Germany ((2005) 40 EHRR 1), applied the principle of whether publication would contribute to a ‘debate of general interest’. Article 8 of the ECHR requires that publication achieve some legitimate social purpose, such as the prevention of a crime, or would be acceptable under any of the other categories specified in Article 8(2) as grounds for derogating from the right to privacy; and whether, in the words of the PCC’s Editors’ Code of Practice, publication would prevent ‘the public from being misled by an action or statement of an individual or organisation.’
The unease expressed on this front rings hollow. If, as I suggest below, any practical attempt to ‘define’ the public interest would take the form of a guide or list of pointers, this fear is misplaced. Even if the test is statutorily prescribed, the courts would still be required to apply and interpret its provisions and—according to Section 12 (4)(b) of the Human Rights Act 1998—a court must have particular regard to freedom of expression and, where the proceedings relate to journalistic, literary or artistic material, to any relevant privacy code. In a sense, therefore, should legislation incorporate (as it must) guidance to the factors relevant to an evaluation of the public interest, all three institutions would be involved.
Hostility to any statutory formulation of the ‘public interest’, however, stems instead from a dread of codification that may curtail media freedom. This complaint is misconceived for at least two reasons. First, it presupposes a narrow formulation of ‘public interest; this is highly improbable especially in view of section 12 of the Human Rights Act—and even without it. Nor does it necessarily follow that a statute would adopt this approach. My draft bill contains a series of indicators rather than a single criterion.
Secondly, resistance to legislation often overlooks the fact that it would fall to a court to interpret its provisions which, as mentioned above, it is presently obliged by section 12 to consult codes devised by the media themselves—and would, in all probability, do even in the absence of this provision.
Any assessment of whether publication of private facts is in the public interest, whatever the source of the guidelines, or the setting in which they are adjudicated—statute, judge, or media regulator—ought to turn on a range of factors, rather than a single monolithic benchmark. They would include criteria such as whether the claimant was a public figure, how the information was acquired, the defendant’s motive, the gravity of the invasion, and so on. And, as suggested in my draft bill, the media would be protected by a presumption that a publication is in the public interest if it was disseminated in pursuit of a number of interests, including the prevention, detection, or investigation of crime, the prevention of unlawful or seriously improper conduct, establishing whether the claimant was able to discharge his or her public or professional obligations, or whether the claimant was fit for any public office or profession held or carried on by him or her , or which he or she sought to hold or carry on professional responsibilities, and so on.
Leave it to the media?
There are two typical responses to a legislative solution—especially from the media. The first, of course, alleges that it would constitute political interference with free speech. But this argument could apply equally to any statute that touched upon public order, defamation, obscenity, contempt of court, blasphemy, copyright, hate speech and so on.
The second contention is that a privacy statute would, in the words of the Joint Committee on Privacy and Injunctions, ‘risk becoming outdated quickly, would not allow for flexibility on a case-by-case basis and would lead to even more litigation over its interpretation.’ In support, the committee makes a number of (implausible) assertions: ‘Any law that sought to define what is private would, in order to remain compliant with the European Convention on Human Rights, also have to set out that the right to privacy is balanced against the right to freedom of expression (and, potentially, other rights)’. So what is the problem?
It asserts also: ‘There is a risk that definitions will not keep pace with developments in society.’ This presumes, as already pointed out, the enactment of a detailed, comprehensive statute. In any event, surely this is a feature of any legislation. Next it claims: ‘There is danger that any list will be treated as exhaustive, and so fail to cover information which should be protected as private.’ Not if the statute explicitly states that the list is not exhaustive. The committee adds: ‘Any list that purports to be exhaustive will imply that anything not in the list should not be covered.’ Why should it do so if the draftsman states otherwise? And the committee concludes: ‘There would no doubt be litigation over the interpretation of the new provisions.’ No doubt?
This argument assumes that a statute would be formulated in elaborate, intricate terms. But, of course, even a highly detailed, comprehensive statute is not immune to amendment and updating.
Addressing the privacy problem
The law ought to be a last resort. Non-legal regulatory forms of mediation will, in many cases, satisfy a claimant’s grievance against an offending publication. The recent post on ‘revenge porn’ demonstrates, (reference) the need to inculcate appropriate, privacy-respecting norms online. Sensitivity to hurtful exposures of intimate information posted on social networks and blogs must become a vital element of moral responsibility. Schools should ensure that pupils appreciate the perils of impetuous, malevolent, and petulant posting—including those that disclose individuals’ own intimate details which (they ought to be warned) are enduring and easily re-broadcast by third parties, including, of course, the media. The ‘architecture’ of the Web can significantly enhance privacy. Default settings of social media need to be clearly and visibly set in favour of privacy.
Few will endorse my statutory solution, even if I am not a lone voice in the wilderness. Law reform bodies in a number of common law jurisdictions including, Australia and Hong Kong, have proposed a privacy statute. And the distinguished former Justice of the Australian High Court, Michael Kirby, has long championed this course of action. Four Canadian provinces (British Columbia, Manitoba, Newfoundland, and Saskatchewan) have privacy statutes on their books.
While we await the final act of the Leveson drama, it is not unreasonable to query whether, since media self-regulation has conspicuously failed in the past, it would succeed now. And another thing. Why should the media be singled out for control? Individuals and websites are increasingly guilty of violating privacy online. Along with the media, their responsibilities—and the rights of their victims—are best expressed in clear statutory language.
The text of my draft bill is available here [pdf].
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).