Why McNally may be wrong on privacy law

Tom McNally calls for yet more legislation on privacy law, but this could be last thing that privacy

From a simplistic point of view there is a certain force in reported comments by the justice minister Lord (Tom) McNally that the development of privacy law should be left to parliament, and not to the courts.

But it may not actually be that straightforward.

What is often not realised is that parliament has already legislated heavily in respect of privacy rights. There is the Data Protection Act 1998 and its alarmingly expansive and ever-growing subordinate legislation. There is the Regulation of Investigatory Powers Act 2000. There are the Privacy and Electronic Communications Regulations 2003. In fact, there are scores of pieces of legislation currently in force, and all this is before one even gets to the multiplying codes of practice and Information Commissioner guidance. There is certainly no lack of parliamentary or other official intervention in respect of privacy law. In fact, there is probably far too much.

What McNally means, of course, is not privacy law generally, but a particular aspect of privacy law: the extent to which the mainstream media can rely on the pretext of "free expression" to intrude into the private spaces of individuals and to publish hitherto personal information to the world at large. This is because, in recent years, the courts have (rightly) developed the equitable and historic doctrine of confidentiality into a basis on which an injunction can be obtained for such wrongful disclosure or misuse of private information.

Yet even on this, parliament has already legislated, almost in anticipation of this welcome and overdue judicial development. Section 12 of the Human Rights Act 1998 (which, ironically, was included at the behest of the mainstream media for their supposed protection) forces the court to conduct a balancing exercise whenever it is asked to grant any relief (including injunctions) that affects free expression. Indeed, under Section 12(4) the court must have "particular regard" to free expression, and also take into account any privacy code that has been freely adopted by the mainstream media.

So there has been no failure by parliament to legislate in respect of privacy generally -- or in respect of press intrusion in particular.

The real background to McNally's comments is the disquiet of the mainstream media at the consequences of legislation already passed, especially the Human Rights Act, which gave effect in English law to Article 8 of the European Convention on Human Rights. Article 8 provides that a person has a right to privacy which can be interfered with only in certain defined circumstances. The development of privacy law in the courts was a direct and foreseeable consequence of this significant legislative step. And now it has happened, the mainstream media want it all to go away.

This is not to deny that there are problems with how the courts are currently dealing with privacy law cases. In particular, there is a legitimate question as to what test should be adopted when granting "super-injunctions". There are also grave concerns over the extent to which privacy law can be used to hide improper business or even public activity.

All that said, it really is more for the higher courts -- the Court of Appeal and the Supreme Court -- to determine the practical tests for injunctions. Such relief is always discretionary, not mandatory; and injunctions are part of the inherent jurisdiction of the courts, and do not usually have a statutory basis. Moreover, in granting injunctions, the courts already have to comply with Section 12 of the Human Rights Act. It is difficult to see what else legislation can do on this point.

Personal privacy is of fundamental importance in a free and civilised society. There is no automatic right of intrusion into a person's private life. Each intrusion, whether it be by the government or the mainstream media, should have a lawful basis and be no more than required to serve a wider public good.

Whether an injunction should ever be granted against the mainstream media to protect this right should be left to the court to decide in all the circumstances, having appropriate regard (as is now the case) to the right of free expression.

In my view, the courts have done a generally good job in developing privacy from the legislative tools already provided by parliament.

Now does not seem the time for statutory intervention in privacy law. Indeed, it is not even clear what that statutory intervention should be.

Instead, McNally and the Ministry of Justice should focus their attention on getting on with libel reform, where contributions to public debates are being prevented by an area of law that does need statutory intervention. Ensuring the efficacy of such public debates by libel reform is of far greater importance than seeking to limit the courts' ability to protect private lives with injunctions where there is no sufficient public interest in the threatened intrusion.

David Allen Green wrrites the Jack of Kent blog.

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.)

John Moore
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The man who created the fake Tube sign explains why he did it

"We need to consider the fact that fake news isn't always fake news at the source," says John Moore.

"I wrote that at 8 o'clock on the evening and before midday the next day it had been read out in the Houses of Parliament."

John Moore, a 44-year-old doctor from Windsor, is describing the whirlwind process by which his social media response to Wednesday's Westminster attack became national news.

Moore used a Tube-sign generator on the evening after the attack to create a sign on a TfL Service Announcement board that read: "All terrorists are politely reminded that THIS IS LONDON and whatever you do to us we will drink tea and jolly well carry on thank you." Within three hours, it had just fifty shares. By the morning, it had accumulated 200. Yet by the afternoon, over 30,000 people had shared Moore's post, which was then read aloud on BBC Radio 4 and called a "wonderful tribute" by prime minister Theresa May, who at the time believed it was a genuine Underground sign. 

"I think you have to be very mindful of how powerful the internet is," says Moore, whose viral post was quickly debunked by social media users and then national newspapers such as the Guardian and the Sun. On Thursday, the online world split into two camps: those spreading the word that the sign was "fake news" and urging people not to share it, and those who said that it didn't matter that it was fake - the sentiment was what was important. 

Moore agrees with the latter camp. "I never claimed it was a real tube sign, I never claimed that at all," he says. "In my opinion the only fake news about that sign is that it has been reported as fake news. It was literally just how I was feeling at the time."

Moore was motivated to create and post the sign when he was struck by the "very British response" to the Westminster attack. "There was no sort of knee-jerk Islamaphobia, there was no dramatisation, it was all pretty much, I thought, very calm reporting," he says. "So my initial thought at the time was just a bit of pride in how London had reacted really." Though he saw other, real Tube signs online, he wanted to create his own in order to create a tribute that specifically epitomised the "very London" response. 

Yet though Moore insists he never claimed the sign was real, his caption on the image - which now has 100,800 shares - is arguably misleading. "Quintessentially British..." Moore wrote on his Facebook post, and agrees now that this was ambiguous. "It was meant to relate to the reaction that I saw in London in that day which I just thought was very calm and measured. What the sign was trying to do was capture the spirit I'd seen, so that's what I was actually talking about."

Not only did Moore not mean to mislead, he is actually shocked that anyone thought the sign was real. 

"I'm reasonably digitally savvy and I was extremely shocked that anyone thought it was real," he says, explaining that he thought everyone would be able to spot a fake after a "You ain't no muslim bruv" sign went viral after the Leytonstone Tube attack in 2015. "I thought this is an internet meme that people know isn't true and it's fine to do because this is a digital thing in a digital world."

Yet despite his intentions, Moore's sign has become the centre of debate about whether "nice" fake news is as problematic as that which was notoriously spread during the 2016 United States Presidential elections. Though Moore can understand this perspective, he ultimately feels as though the sentiment behind the sign makes it acceptable. 

"I use the word fake in inverted commas because I think fake implies the intention to deceive and there wasn't [any]... I think if the sentiment is ok then I think it is ok. I think if you were trying to be divisive and you were trying to stir up controversy or influence people's behaviour then perhaps I wouldn't have chosen that forum but I think when you're only expressing your own emotion, I think it's ok.

"The fact that it became so-called fake news was down to other people's interpretation and not down to the actual intention... So in many interesting ways you can see that fake news doesn't even have to originate from the source of the news."

Though Moore was initially "extremely shocked" at the reponse to his post, he says that on reflection he is "pretty proud". 

"I'm glad that other people, even the powers that be, found it an appropriate phrase to use," he says. "I also think social media is often denigrated as a source of evil and bad things in the world, but on occasion I think it can be used for very positive things. I think the vast majority of people who shared my post and liked my post have actually found the phrase and the sentiment useful to them, so I think we have to give social media a fair judgement at times and respect the fact it can be a source for good."

Amelia Tait is a technology and digital culture writer at the New Statesman.