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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.

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