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.)

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The most terrifying thing about Donald Trump's speech? What he didn't say

No politician uses official speeches to put across their most controversial ideas. But Donald Trump's are not hard to find. 

As Donald Trump took the podium on a cold Washington day to deliver his inauguration speech, the world held its breath. Viewers hunched over televisions or internet streaming services watched Trump mouth “thank you” to the camera, no doubt wondering how he could possibly live up to his deranged late-night Twitter persona. In newsrooms across America, reporters unsure when they might next get access to a president who seems to delight in denying them the right to ask questions got ready to parse his words for any clue as to what was to come. Some, deciding they couldn’t bear to watch, studiously busied themselves with other things.

But when the moment came, Trump’s speech was uncharacteristically professional – at least compared to his previous performances. The fractured, repetitive grammar that marks many of his off-the-cuff statements was missing, and so, too, were most of his most controversial policy ideas.

Trump told the crowd that his presidency would “determine the course of America, and the world, for many, many years to come” before expressing his gratefulness to President Barack Obama and Michelle Obama for their “gracious aid” during the transition. “They have been magnificent," Trump said, before leading applause of thanks from the crowd.

If this opening was innocent enough, however, it all changed in the next breath. The new president moved quickly to the “historic movement”, “the likes of which the world has never seen before”, that elected him President. Following the small-state rhetoric of his campaign, Trump promised to take power from the “establishment” and restore it to the American people. “This moment," he told them, “Is your moment. It belongs to you.”

A good deal of the speech was given over to re-iterating his nationalist positions while also making repeated references to the key issues – “Islamic terrorism” and families – that remain points of commonality within the fractured Republican GOP.

The loss of business to overseas producers was blamed for “destroying our jobs”. “Protection," Trump said, “Will lead to great strength." He promised to end what he called the “American carnage” caused by drugs and crime.

“From this day forward," Trump said, “It’s going to be only America first."

There was plenty in the speech, then, that should worry viewers, particularly if you read Trump’s promises to make America “unstoppable” so it can “win” again in light of his recent tweets about China

But it was the things Trump didn't mention that should worry us most. Trump, we know, doesn’t use official channels to communicate his most troubling ideas. From bizarre television interviews to his upsetting and offensive rallies and, of course, the infamous tweets, the new President is inclined to fling his thoughts into the world as and when he sees fit, not on the occasions when he’s required to address the nation (see, also, his anodyne acceptance speech).

It’s important to remember that Trump’s administration wins when it makes itself seem as innocent as possible. During the speech, I was reminded of my colleague Helen Lewis’ recent thoughts on the “gaslighter-in-chief”, reflecting on Trump’s lying claim that he never mocked a disabled reporter. “Now we can see," she wrote, “A false narrative being built in real time, tweet by tweet."

Saying things that are untrue isn’t the only way of lying – it is also possible to lie by omission.

There has been much discussion as to whether Trump will soften after he becomes president. All the things this speech did not mention were designed to keep us guessing about many of the President’s most controversial promises.

Trump did not mention his proposed ban on Muslims entering the US, nor the wall he insists he will erect between America and Mexico (which he maintains the latter will pay for). He maintained a polite coolness towards the former President and avoiding any discussion of alleged cuts to anti-domestic violence programs and abortion regulations. Why? Trump wanted to leave viewers unsure as to whether he actually intends to carry through on his election rhetoric.

To understand what Trump is capable of, therefore, it is best not to look to his speeches on a global stage, but to the promises he makes to his allies. So when the President’s personal website still insists he will build a wall, end catch-and-release, suspend immigration from “terror-prone regions” “where adequate screening cannot occur”; when, despite saying he understands only 3 per cent of Planned Parenthood services relate to abortion and that “millions” of women are helped by their cancer screening, he plans to defund Planned Parenthood; when the president says he will remove gun-free zones around schools “on his first day” - believe him.  

Stephanie Boland is digital assistant at the New Statesman. She tweets at @stephanieboland