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The myth of privacy law

Bloggers give evidence to Parliament.

Yesterday I went to the parliamentary committee on privacy and injunctions session, and there I heard some worrying things from the MPs and Peers asking the questions. I was one of those supposed to be answering these questions.

Along with myself, the other three bloggers asked to give oral evidence were the indefatigable Richard Wilson, the human rights campaigner who broke the "Trafigura" story, Paul Staines of Guido Fawkes, and Jamie East of the celebrity gossip blog Holy Moly.

(The fact that, of the four of us, only Paul writes regularly about parliamentary matters did not prevent the Independent from saying we were "the faces behind the blogs that Westminster fears".)

The session was a strange experience -- you can watch it here and you can also read Richard's fine account -- but it was also rather revealing.

One can have no idea how much the Lords and MPs learned about blogging and tweeting -- apparently a distinguished parliamentarian looked confused when I mentioned "linking" -- but those watching the session could see that most of the questioners did not really understand the law of privacy. It was also clear that many Lords and MPs did not understand social media.

Repeatedly, the questions contained general references to "privacy law" and tweeters or bloggers "breaking injunctions". But as Paul mentioned rightly, though provocatively, we do not actually have a privacy law in this country. Furthermore, not a single MP or Lord explained how a tweeter or blogger could be in breach of a court order when that blogger or tweeter had not first been put on notice of the terms of that court order.

That we have a general law of "privacy" is indeed a myth. The House of Lords in the case of Wainwright in 2003 held that there is not a free-standing law of privacy in England and Wales. This remains the law of the land. One cannot go to any court or tribunal and obtain a remedy just by mentioning a supposed breach of privacy.

What there is, instead, is a bundle of civil and criminal laws -- abuse of private information, confidentiality, data protection, harassment, and (increasingly) blackmail -- which have been informed and developed by the courts since Human Rights Act 1998 incorporating Article 8 of the European Convention on Human Rights took effect. But to rely on Article 8 always requires the use of an applicable "cause of action" or a criminal offence. One cannot rely on Article 8 without it.

This is not a merely pedantic point. Without understanding the actual underlying applicable law, it is impossible to grasp why the relevant court orders -- "interim" (that is, temporary until full trial) injunctions and "final" injunctions -- are granted. An interim injunction is there to preserve the rights of the parties until a trial can take place and the matter be disposed of. But the issue with private or confidential information, and with legally privileged information, is that once it is publicised then any further legal action is futile. What should be protected has escaped from its bottle and cannot be returned.

Indeed, it is factually correct that parliament did expressly enact a law of privacy. The laws relevant to privacy -- especially the tort of misuse of private information -- have been developed significantly by the Courts in the eleven years since the Human Rights Act took full effect in 2000. And there is nothing inherently wrong with this; is it what courts do in common law jurisdictions. Those who say that we should not have a "judge-made" law of privacy because we already have a law of libel miss the point that libel is as much a common law tort as the misuse of information.

Parliament also never enacted a law of defamation, or of contract, or of negligence, or of confidentiality, or of trusts. Even certain criminal offences such as murder have a judge-made common law basis. It is open to parliament to abolish or amend such common law, but to object to any law on the simple basis that it is "judge-made" is to show ignorance of just how much of the substantive law of England and Wales also has no ultimate basis in any parliamentary statute.

Nonetheless, the fundamental question before the Joint Committee is what intervention, if any, can legislation make to deal with the illiberal use of privacy and other injunctions. It is not for parliament to make particular decisions on court applications, nor is it for parliament to make court orders in individual cases. Parliament may abolish or amend the new common law tort of misuse of private information (or abolish or repeal other laws), and it may provide a statutory procedural framework for the courts to follow when presented with an application by an aggrieved party. But MPs and Lords cannot usurp the role of a judge in individual cases, and nor should they.

Of all the distinguished parliamentarians who asked questions yesterday, only Elfyn Lloyd MP seemed to get this, asking about speeding up the time between interim hearings and final disposal. Almost all the other committee members just spoke generally -- and vaguely -- about "privacy law" and "breaching injunctions". Worryingly, few questions showed the MPs and Lords had any detailed knowledge of the law which they are considering.

Just as worrying was the simple lack of awareness of how social media operates. MPs talked loftily of "regulating" Twitter but without any real idea of how such regulation would actually work, what mechanisms could be adopted, and how any sanctions would be enforced. A politician saying something should be regulated (or "banned") does not act like some magic spell rendering such envisaged regulation (or prohibition) effective. One suspects parliamentarians do not yet realise that there is now a form of instant worldwide communication which is quite beyond the control of them; and indeed almost anyone else.

In all this, one crucial fact lingers about the relationship between social media, privacy, and the breaking of so-called "super-injunctions". Any breaches which have so far occurred were not actually instigated by tweeters or bloggers. The breaches were by parliamentarians, or by those working in the mainstream media. All that tweeters and bloggers did was to then circulate and publish the respective information which had been leaked by others. This is not to justify such circulation and publication, but it is to state what actually happened.

In respect of "super-injunctions" and social media, the proverbial stable doors have so far always been opened by others.

 

Read the "Uncorrected Transcript" here

David Allen Green is legal correspondent of the New Statesman