Privacy injunctions and free speech

David Cameron says that privacy law should be made by Parliament rather than judges. The PM was responding to a series of injunctions restricting what newspapers and others can publish about certain famous people's private lives.

Does court protection of celeb privacy go too far?
But the courts are applying the Human Rights Act which was passed by Parliament in 1998. And it is normal for judges to interpret the law (actually, it's their job). So why the fuss?

Parliament has looked at creating a privacy law several times over the last few decades. Each time, it has been argued that the press intrusion has become too much. But each time the argument that free speech must take priority has won the day, and the UK never had a privacy law, until...

In brief
  • Historically, the UK parliament has avoided a privacy law in the interests of a free and open press
  • But the Human Rights Act gives people the right to a private life.
  • It is the job of judges to interpret the law -- this has always been so.
  • Because privacy is bound into the European Convention on Human Rights, David Cameron may find it difficult to change the law
  • Section 12 of the HRA gives priority to free speech in injunction cases -- one MP suggests that judges are not applying this correctly
  • Privacy of individuals is balanced against public interest in publishing. Judges decide whether individual stories are in the public interest
  • Government has been reluctant to define public interest in other laws

In 1998, the European Convention on Human Rights was codified into UK law as the Human Rights Act. It includes a clause on privacy but it was generally understood to refer to intrusions by government into people's private lives rather that giving people an absolute right to privacy (media lawyer Mark Stephens points to the work done in preparation for the ECHR which clearly refers to the right to privacy in terms of government interference).

In 2004, Princess Caroline of Monaco took the German government to the European Court of Human Rights. She wanted to stop the paparazzi who had been photographing her and her family to such an extent it had become highly intrusive. Her argument was that because the German government had not prevented the intrusion, it was effectively interfering with private life and so was contravening the European Convention on Human Rights.

The court agreed and UK courts have to take European Court rulings into account. This effectively introduced a privacy law that went beyond protecting citizens from their governments. Arguably the European Court judges were just doing their job interpreting how the law applies in a particular case. Arguably they distorted the law so that it now applies in a way that was never intended by the governments who drafted the European Convention on Human Rights.

In the UK, the situation is complicated by the fact that we have no explicit privacy law. The mechanism lawyers are using is to ask courts to apply a law called Breach of Confidence in light of the HRA (as modified by the Princess Caroline ruling).  For example, Max Mosely's privacy action against the News of the World was technically a Breach of Confidence case.

Like a great deal of English law, Breach of Confidence is enshrined in common law. This is, by definition, law created by judges rather than parliament. Recent court rulings have effectively extended Breach of Confidence from a law about confidential paperwork to a law on privacy. For journalists, the main defence to Breach of Confidence has always been public interest and modern privacy cases often also hinge on whether there was a public interest in publication.

To an extent, David Cameron is right that the privacy law has been made by judges. That is a normal part of the evolution of English law. But speaking on Channel 4 News, John Whittingdale MP, chairman of the parliamentary committee on Culture, Media and Sport suggested that judges' rulings did not take sufficient account of section 12 of the Human Rights Act.

If someone finds out that confidential or private information is about to be published, they can ask a court for an injunction -- a legal device that prevents publication (ignoring an injunction is a contempt of court: a crime with potentially serious consequences). A judge at an injunction hearing will not go through all the evidence because there is an urgency in preventing private information being published. To overturn an injunction, a newspaper has to proceed with a full Breach of Confidence case. This can take several months and because news is perishable, many injunctions are never challenged. Section 12 of the Human Rights Act is intended to counteract this imbalance, preventing people from using injunctions to limit free speech.

Judges are only supposed to allow injunctions where the claimant would be very likely to win if a full Breach of Confidence trial was heard. If there is a good public interest defence, an injunction should not therefore be imposed. In many privacy cases the question will be what counts as public interest and, again, this is up to judicial interpretation.

The government recently published a draft bill reforming the libel law. This will include a public interest defence but, in this law, the government has specifically avoided defining public interest, leaving it instead to ... you guess it ... judges in individual cases.

Personally, I am in favour of the government reviewing the effect that a privacy law that sneaked up on us is having on free speech. But judges are always going to be central to the evolution of the law and we should trust them to do it.

For working journalists, it looks like privacy is a fact of life. The important thing will be understanding the public interest in the stories we are writing so that we are in a position to defend them.