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

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Let's face it: supporting Spurs is basically a form of charity

Now, for my biggest donation yet . . .

I gazed in awe at the new stadium, the future home of Spurs, wondering where my treasures will go. It is going to be one of the architectural wonders of the modern world (football stadia division), yet at the same time it seems ancient, archaic, a Roman ruin, very much like an amphitheatre I once saw in Croatia. It’s at the stage in a new construction when you can see all the bones and none of the flesh, with huge tiers soaring up into the sky. You can’t tell if it’s going or coming, a past perfect ruin or a perfect future model.

It has been so annoying at White Hart Lane this past year or so, having to walk round walkways and under awnings and dodge fences and hoardings, losing all sense of direction. Millions of pounds were being poured into what appeared to be a hole in the ground. The new stadium will replace part of one end of the present one, which was built in 1898. It has been hard not to be unaware of what’s going on, continually asking ourselves, as we take our seats: did the earth move for you?

Now, at long last, you can see what will be there, when it emerges from the scaffolding in another year. Awesome, of course. And, har, har, it will hold more people than Arsenal’s new home by 1,000 (61,000, as opposed to the puny Emirates, with only 60,000). At each home game, I am thinking about the future, wondering how my treasures will fare: will they be happy there?

No, I don’t mean Harry Kane, Danny Rose and Kyle Walker – local as well as national treasures. Not many Prem teams these days can boast quite as many English persons in their ranks. I mean my treasures, stuff wot I have been collecting these past 50 years.

About ten years ago, I went to a shareholders’ meeting at White Hart Lane when the embryonic plans for the new stadium were being announced. I stood up when questions were called for and asked the chairman, Daniel Levy, about having a museum in the new stadium. I told him that Man United had made £1m the previous year from their museum. Surely Spurs should make room for one in the brave new mega-stadium – to show off our long and proud history, delight the fans and all those interested in football history and make a few bob.

He mumbled something – fluent enough, as he did go to Cambridge – but gave nothing away, like the PM caught at Prime Minister’s Questions with an unexpected question.

But now it is going to happen. The people who are designing the museum are coming from Manchester to look at my treasures. They asked for a list but I said, “No chance.” I must have 2,000 items of Spurs memorabilia. I could be dead by the time I finish listing them. They’ll have to see them, in the flesh, and then they’ll be free to take away whatever they might consider worth having in the new museum.

I’m awfully kind that way, partly because I have always looked on supporting Spurs as a form of charity. You don’t expect any reward. Nor could you expect a great deal of pleasure, these past few decades, and certainly not the other day at Liverpool when they were shite. But you do want to help them, poor things.

I have been downsizing since my wife died, and since we sold our Loweswater house, and I’m now clearing out some of my treasures. I’ve donated a very rare Wordsworth book to Dove Cottage, five letters from Beatrix Potter to the Armitt Library in Ambleside, and handwritten Beatles lyrics to the British Library. If Beckham and I don’t get a knighthood in the next honours list, I will be spitting.

My Spurs stuff includes programmes going back to 1910, plus recent stuff like the Opus book, that monster publication, about the size of a black cab. Limited editions cost £8,000 a copy in 2007. I got mine free, as I did the introduction and loaned them photographs. I will be glad to get rid of it. It’s blocking the light in my room.

Perhaps, depending on what they want, and they might take nothing, I will ask for a small pourboire in return. Two free tickets in the new stadium. For life. Or longer . . . 

Hunter Davies is a journalist, broadcaster and profilic author perhaps best known for writing about the Beatles. He is an ardent Tottenham fan and writes a regular column on football for the New Statesman.

This article first appeared in the 16 February 2017 issue of the New Statesman, The New Times