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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I'm far from convinced by Cameron's plans for Syria

The Prime Minister has a plan for when the bombs drop. But what about after?

In the House of Commons today, the Prime Minister set out a powerful case for Britain to join air strikes against Isil in Syria.  Isil, he argued, poses a direct threat to Britain and its people, and Britain should not be in the business of “outsourcing our security to our allies”. And while he conceded that further airstrikes alone would not be sufficient to beat Isil, he made the case for an “Isil first” strategy – attacking Isil now, while continuing to do what we can diplomatically to help secure a lasting settlement for Syria in which Assad (eventually) plays no part.

I agreed with much of David Cameron’s analysis. And no-one should doubt either the murderous barbarism of Isil in the region, or the barbarism they foment and inspire in others across the world.  But at the end of his lengthy Q&A session with MPs, I remained unconvinced that UK involvement in airstrikes in Syria was the right option. Because the case for action has to be a case for action that has a chance of succeeding.  And David Cameron’s case contained neither a plan for winning the war, nor a plan for winning the peace.

The Prime Minister, along with military experts and analysts across the world, concedes that air strikes alone will not defeat Isil, and that (as in Iraq) ground forces are essential if we want to rid Syria of Isil. But what is the plan to assemble these ground forces so necessary for a successful mission?  David Cameron’s answer today was more a hope than a plan. He referred to “70,000 Syrian opposition fighters - principally the Free Syrian Army (FSA) – with whom we can co-ordinate attacks on Isil”.

But it is an illusion to think that these fighters can provide the ground forces needed to complement aerial bombardment of Isil.  Many commentators have begun to doubt whether the FSA continues to exist as a coherent operational entity over the past few months. Coralling the myriad rebel groups into a disciplined force capable of fighting and occupying Isil territory is a heroic ambition, not a plan. And previous efforts to mobilize the rebels against Isil have been utter failures. Last month the Americans abandoned a $500m programme to train and turn 5,400 rebel fighters into a disciplined force to fight Isil. They succeeded in training just 60 fighters. And there have been incidents of American-trained fighters giving some of their US-provided equipment to the Nusra Front, an affiliate of Al Qaeda.

Why has it proven so hard to co-opt rebel forces in the fight against Isil? Because most of the various rebel groups are fighting a war against Assad, not against Isil.  Syria’s civil war is gruesome and complex, but it is fundamentally a Civil War between Assad’s forces and a variety of opponents of Assad’s regime. It would be a mistake for Britain to base a case for military action against Isil on the hope that thousands of disparate rebel forces can be persuaded to change their enemy – especially when the evidence so far is that they won’t.

This is a plan for military action that, at present, looks highly unlikely to succeed.  But what of the plan for peace? David Cameron today argued for the separation of the immediate task at hand - to strike against Isil in Syria – from the longer-term ambition of achieving a settlement in Syria and removing Assad.  But for Isil to be beaten, the two cannot be separated. Because it is only by making progress in developing a credible and internationally-backed plan for a post-Assad Syria that we will persuade Syrian Sunnis that fighting Isil will not end up helping Assad win the Civil War.  If we want not only to rely on rebel Sunnis to provide ground troops against Isil, but also provide stable governance in Isil-occupied areas when the bombing stops, progress on a settlement to Syria’s Civil War is more not less urgent.  Without it, the reluctance of Syrian Sunnis to think that our fight is their fight will undermine the chances of military efforts to beat Isil and bring basic order to the regions they control. 

This points us towards doubling down on the progress that has already been made in Vienna: working with the USA, France, Syria’s neighbours and the Gulf states, as well as Russia and Iran. We need not just a combined approach to ending the conflict, but the prospect of a post-war Syria that offers a place for those whose cooperation we seek to defeat Isil. No doubt this will strike some as insufficient in the face of the horrors perpetrated by Isil. But I fear that if we want not just to take action against Isil but to defeat them and prevent their return, it offers a better chance of succeeding than David Cameron’s proposal today. 

Stewart Wood is a former Shadow Cabinet minister and adviser to Ed Miliband. He tweets as @StewartWood.