Privacy vs. Freedom of Expression: Historical & Legal View, Slides of Law

Download Privacy vs. Freedom of Expression: Historical & Legal View and more Slides Law in PDF only on Docsity! Lord Neuberger at the UK Association of Jewish Lawyers and Jurists' Lecture Privacy in the 21st Century 28 November 2012 (1) Introduction1 1. Good evening. It is a pleasure to have been asked to give tonight’s lecture. Privacy is a subject which seems to be forever topical. It excites (in both senses of the word) public discussion, while demanding considered reflection. And it raises many difficult and, often, controversial questions. Is privacy a value which society should protect? If so, to what extent? Is protection of privacy a fetter on freedom of expression? If so, can and should a balance be struck between them? And if so, what type of balance? Should, for instance, freedom of expression always trump privacy, as it is sometimes suggested is the position in the United States? A suggestion, I may add, which ignores a variety of US statutes and constitutional provisions which protect certain aspects of privacy to varying degrees, subject to the First Amendment protection of freedom of speech and expression2. 2. And is privacy a value which is, on deeper analysis, not inimical to or a fetter on freedom of expression: is it actually a necessary and vital aspect of 1 I wish to thank John Sorabji for all his help in preparing this lecture. 2 For a discussion see D. Anderson, The Failure of American Privacy Law, in B. Markesinis (ed), Protecting Privacy (OUP) (1999). 1 freedom of expression? Or should we maintain the straightforward and generally held view that the two are wholly distinct, indeed often in conflict? 3. These are all difficult questions. They go to the heart of issues concerning the very nature of society. It was, of course, to a large degree concerns about invasions of privacy which underpinned the decision to set up Lord Justice Leveson’s Inquiry, which issues its report tomorrow, and will wholly drown the reverberations of anything I say this evening which is stupid or controversial. 4. Questions concerning privacy have become all the more pertinent over the last twenty years for three reasons, which are no doubt not entirely discrete from each other. The first is legal; the second is social; the third is technological. 5. The legal reason derives from the introduction of the Human Rights Act 1998 (“the HRA”), which incorporated the European Convention, and in particular Articles 8 and 10, into British law. For the first time, privacy, as a generalised free-standing (albeit not absolute) right, was enshrined in a British statute, and, it should be added, for the first time, freedom of expression, as a generalised free-standing (albeit not absolute) right, was enshrined in a British statute. 2 is mobile phones, which mean that it is very easy to contact us, to trace us, to photograph us, and to record us, and, it appears, to intercept our messages. 9. The development of this global cyber-village brings questions of privacy and freedom of speech into sharp focus. We have, I think, only just started to appreciate the fundamental effect of this technological development on our perception of the right to privacy and to freedom of expression. The pace of development of IT seems to be ever accelerating, and this adds to the problem, as it means that the way in which individuals view their rights to privacy, and to freedom of expression, is in turn changing. We are, as they say in America, always playing catch-up. 10.In tonight’s lecture I want to consider some of the issues thrown up by these legal, social and technological changes. I shall start by considering the common law’s approach to privacy prior to the HRA. If we are to consider properly how the future may develop, we need to ground it in the past. I then want to look at the influence of the HRA on the development of privacy. Next, I turn to the effect of technology on privacy. Finally I consider how the HRA and technology may jointly develop our approach to privacy going, as they say, forward. 5 (2) Privacy – the right to be ‘let alone’ 11.We are sometimes led to believe that privacy has not in any way been protected in English law: that 1998 was for privacy, to use Larkin’s famous words, what 1963 (yes, I am on about the 1960s again) was for sexual intercourse, “the time when it all began”6. Well, 1998 was no more when privacy began in English law than 1963 was when sexual intercourse began. 12.Privacy was first protected by statute in 1361, when the Justices of the Peace Act made eavesdropping a criminal offence, and the offence remained on the statute book until 19677. The first time that the common law was moved to protect privacy was in Semayne’s Case, which was reported in 1604 by the then Attorney-General, Sir Edward Coke8. The name of the case may not be all that familiar. The principle it established is well known. The case concerned the entry into a property by the Sheriff of London in order to execute a valid writ. In Coke’s words, the principle enunciated by Semayne was ‘That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose . . .9’. 6 P. Larkin, Annus Mirabilis. 7 Criminal Law Act 1967, s 13. 8 (1604) 5 Co Rep 91; 77 E.R. 194. 9 (1604) 5 Co Rep 91; 77 E.R. 194 at 195. 6 The case recognised the right of a citizen to defend his property, and his peaceful repose within it, in other words, a citizen’s privacy from intrusion into his or her property, including entry by the King’s Sheriff. 13.The common law did not stop there. The case of Entick v Carrington in 176510 is rightly celebrated for establishing the right to liberty, the right to security and the right to property. Lord Camden CJ put it this way in his judgment, ‘By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. . .11’ The principle can also be read as protecting privacy. Entick’s house had been forcibly entered by agents of the State. They were looking for, amongst other things, pamphlets which were said to be seditious. Entick was an associate of John Wilkes, the English radical politician, and, it must be added, the famous, or, if you prefer, the notorious, pornographer. Entick’s documents, and no doubt his diaries, journals and the private thoughts set out in them, 10 (1765) 19 St. Tr. 1029. 11 Ibid at 1066. 7 18.A creative approach by the courts in the 19th Century could have developed the common law so as to result in a general right to privacy, thereby giving effect to the values apparently recognised in Prince Albert’s case. That was certainly the view of Samuel Warren and future US Supreme Court Justice Louis Brandeis, when, as young lawyers, they wrote their seminal paper, The Right to Privacy in 1890. They concluded in the light of Lord Cottenham’s statement concerning privacy in Prince Albert’s case, that ‘. . . if privacy is once recognized [which they took it Lord Cottenham had recognised] as a right entitled to legal protection, the interposition of the courts cannot depend on the particular nature of the injuries resulting. These considerations lead to the conclusion that the protection afforded . . . is merely an instance of the enforcement of the more general right of the individual to be let alone [which was the very right to repose acknowledged in Semayne’s Case]. 17’ 19.The English courts did not take such an approach. Rather than develop a general right to privacy, as Warren and Brandeis suggested, the common law went in a different direction and built on the law of confidence as the means to give effect to a narrower, limited, and fact-specific form of privacy right. The fact that there was no general common law right to privacy was emphasised in uncompromising fashion by the Court of Appeal in 1991. 17 S. Warren & L. Brandeis, The Right to Privacy, (1890) 4 Harv. L. Rev. 193 at 205. 10 20.In Kaye v Robertson18, the actor and star of ’Allo ’Allo!, Gordon Kaye was recovering from brain surgery in a private hospital room. He was photographed by a journalist who sneaked into his room and falsely claimed to have interviewed him. Warren and Brandeis would no doubt have said that here was as obvious a case of invasion of privacy that you could imagine, and that the common law should protect it consistently with the approach taken by Lord Cottenham in Prince Albert’s case. 21.The Court of Appeal in Kaye’s case took a different view. It followed the narrower approach, stating that ‘in English law there is no right to privacy, and accordingly there is no right of action for breach of a person's privacy.19’ It would appear that, in the absence of a property right or a relationship of trust and confidence, there was no basis for the common law to give effect to a claim for privacy. 22.Thus, the point we had reached then in this country when the HRA was enacted was that there was no general right to privacy, no right to be let alone. Privacy as a value was however protected in a number of ways, not least through the tort of confidentiality, as the Court of Appeal made clear in 18 [1991] FSR 62 19 Ibid at 66. 11 A v B20. It was a value which however was given limited protection, a point which the House of Lords had illustrated in R v Director of Serious Fraud Office, ex parte Smith in 199321. 23.That case concerned the question of the right to silence. A company’s managing director was charged with having knowingly been party to carrying on the company’s business with intent to defraud its creditors. After having been cautioned, he was served with a notice requiring him to attend an interview with the Director of the Serious Fraud Office to answer questions. He challenged the notice by way of judicial review. The issue was whether the requirement to answer questions infringed the right to silence. 24.Lord Mustill gave the leading opinion in the House of Lords. He identified six different types of immunity which came under the umbrella of the right to silence, and identified the reasons which caused these immunities to ‘become embedded in English law.22’ He described the first of those reasons in these terms, ‘[It] is a simple reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business. All civilised states recognise this assertion of 20 [2003] QB 195 at [5], and see Duchess of Argyll v Duke of Argyll [1967] Ch 302; Stephens v Avery [1988] Ch 449. 21 [1993] AC 1 at 30E-32D. 22 [1993] AC 1 at 31. 12 29.There was an expectation that the HRA would bring the final curtain down on this dance: that it would finally bring the courts to the point where they would develop a general law, or tort, of privacy. Lord Phillips MR, as he then was, for instance noted in Douglas v Hello! Ltd (No 6)26 how the Labour government responsible for the HRA anticipated that ‘the judges [would] develop the law appropriately, having regard to the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms. . .’27. 30.In a previous Court of Appeal judgment in the Douglas v Hello!28 litigation, Lord Justice Sedley had not been so coy. For him, the enactment of the HRA meant one thing: that we had ‘reached a point at which it [could] be said with confidence that the law recognises and [would] appropriately protect a right of personal privacy.29’ More specifically, its enactment would, as he put it, provide ‘the final impetus to the recognition of a right of privacy in English law.30’ 31.Has the HRA given that final impetus? The Law Lords’ answer to that is not perhaps as clear as it could be. There is both a positive and a negative case. 26 [2006] QB 125. 27 Ibid at [46]. 28 Douglas v Hello! Ltd (No. 1) [2001] QB 967. 29 Ibid at 997. 30 Ibid at 998. 15 The latter is quite straightforward and can be found in the House of Lords’ decision in Wainwright v Home Office31 from 2003. The Wainwrights – mother and son – were subject to a strip-search when visiting a prison in 1997. The search was carried out in accordance with the Prison Rules 1964, rule 86. The son, who was mentally impaired and suffered from cerebral palsy, later developed post-traumatic stress disorder. Claims for damages arising from trespass and trespass to the person were issued. 32.By the time the claim reached the House of Lords, the Wainwrights’ claim centred, in one part at least, on the argument that the Lords should declare that there was, in the light of the 1998 Act making the Convention part of UK law (to put it in a shorthand way), and the United Kingdom’s obligations under the European Convention, a tort of invasion of privacy32. Their Lordships were effectively being invited to take up Sedley LJ’s challenge and to invoke the HRA to declare, finally, that a general tort of privacy formed part of English law. 33.That invitation was declined. The Law Lords refused to declare that Article 8 of the Convention had spawned a common law tort of privacy, stating that the creation of such a tort was a matter for Parliament. As for Sedley LJ’s 31 [2004] 2 AC 406. 32 [2004] 2 AC 406 at [14]. 16 challenge, it was explained by Lord Hoffmann in the following, minimalist terms, ‘I do not understand Sedley LJ to have been advocating the creation of a high-level principle of invasion of privacy. His observations are in my opinion no more (although certainly no less) than a plea for the extension and possibly renaming of the old action for breach of confidence.33’ 34.Thus, the position following Wainwright’s case is clear: there is no general tort of privacy in English law. The enactment of the HRA has not changed that, nor does it require it. As Raymond Wakes might put it, the dance goes on. 35.That is the negative case. There is, however, a positive version, which has been cogently supported by Professor Gavin Phillipson, who suggests that, notwithstanding the explicit rejection of a general tort of privacy by the House of Lords in Wainwright’s case, the courts have in fact used the HRA to transform the tort (or, as I would put it as a former Chancery lawyer, the equitable claim) of breach of confidence into a general privacy tort (or equitable claim). The argument as explained by Phillipson34 is that the courts have effected two fundamental changes to the law of breach of confidence: 33 [2004] 2 AC 406 at [30]. 34 G. Phillipson, The ‘right’ of privacy in England and Strasbourg compared, in A. Kenyon & M Richardson (eds), New Dimensions in Privacy Law (CUP) (2006); and see G. Phillipson, Privacy in D. Hoffman (ed), The Impact of the UK Human Rights Act on Private Law, (Cambridge) (2011) 17 ‘What the House [in Campbell] was agreed upon was that the knowledge, actual or imputed, that information is private will normally impose on anyone publishing that information the duty to justify what, in the absence of justification, will be a wrongful invasion of privacy.41’ Later, in the same judgment, he described privacy claims having been ‘shoe- horn[ed] … into the cause of action of breach of confidence42’, an apt description – but I would say that, as it was in a judgment of the Court of which I was a member. 38.For Phillipson, and no doubt others, this decision has one consequence, namely the creation of a tort of privacy. What else, it might be said, could a claim for misuse of private information be but a claim in privacy? No doubt at some point in the future, the courts will have to grapple with the question whether Wainwright’s denial of a tort of privacy is consistent with the way in which the law is said to have developed as a consequence of Campbell. Given more recent decisions, such as HRH Prince of Wales v Associated Newspapers Ltd43, McKennitt v Ash44, and Murray v Express Newspapers Plc45, and, as the authors of Clerk & Lindsell have it, ‘the continued movement towards reshaping the action [for misuse of private information] 41 Douglas v Hello! Ltd (No. 6) [2006] QB 125 at [82]. 42 Ibid at [96]. 43 [2008] Ch 57. 44 [2008] QB 73. 45 [2008] 3 WLR 1360. 20 into something approaching a privacy action46’, it may be that that day is not far off. Or, as I must add, as I may be called upon to help decide the point, maybe not. 39.The question I posed earlier is: how has the HRA changed things? On one view it hasn’t, and there remains no general privacy tort. On another view it has proved the spur to a reshaping of the tort of misuse of confidential information into something akin to, or perhaps even actually, a privacy tort. But, it may be said, this is all very interesting and esoteric, but technological developments are rendering these developments redundant or irrelevant, because they render it impossible to enforce any tort of privacy. (4) Technology, Twitter and Super-injunctions 40.In December 1995, 16 million people, or 0.4% of the world’s population, used the internet47. By December 2005, that figure had reached 1.018 billion people, or 15.7% of the world’s population. By June 2012, according to the last set of available figures, the figure had risen to 2.4 billion people or 34.3% of the world’s population. In that time, we have seen the advent of email, which now to those at the cutting edge of electronic communication, is almost as archaic as snail mail, and the advent of YouTube, Facebook and 46 Clerk & Lindsell on Torts (20th ed) at 27-38. 47 See <http://www.internetworldstats.com/emarketing.htm>. 21 Twitter. And half of those 2.4 billion people are able to access the internet through their mobile phones48. 41.And, of course, mobile phones are not just passive receivers. Their users can not just surf the net, they can – as we all know – upload photographs taken by their phone to their Facebook accounts, upload videos again created by the phone on to YouTube, and publish their thoughts to the world via their blogs and Twitter accounts. Anyone who wants to do so can become, in the words of David Gillmor, ‘We the media49’. These developments have had a profound effect, and one which we are really only now beginning properly to grasp – indeed, I doubt that we have yet really begun to grasp the extraordinary nature of these changes and their revolutionary consequences. 42.For some, these changes ordain a world where privacy is dead: where we will all live under the scrutinising, and perhaps censorious, eye of citizen Big Brother. Each of us watching the other, with our camera phones at the ready to record and broadcast anything we find interesting, amusing, offensive or improper. In many ways, that world would be little different from the prison Jeremy Bentham conceived in 1787, and called a Panopticon, where every prisoner could see exactly what every other prisoner was doing at all times. 48 See <http://mobithinking.com/mobile-marketing-tools/latest-mobile-stats/b#mobilebroadband>. 49 D. Gillmor, We the media <http://oreilly.com/openbook/wemedia/book/index.html>. 22 may be granted could be another deterrent to applying for an injunction following the John Terry case53, and the fact that a failed application adds fuel to the fire. The report of the Committee I chaired has, I would hope, also played a part in showing that the number of so-called super-injunctions was greatly exaggerated, and the recommendations it made, I hope, also ensured that proper procedural safeguards were in place in respect of interim privacy injunctions. 46.The fact that the names of individuals who had obtained anonymised injunctions to protect their privacy were circulated on the internet raises two particular questions concerning privacy. First, it raises a question concerning the rule of law. The injunctions were breached with seeming impunity by many tens of thousands of people. Secondly, it raises a question concerning the rights of others: it was widely reported that a number of celebrities were wrongly identified as having obtained such injunctions. This gives rise to concerns regarding damage to individuals’ reputations on the basis of false rumours, as well as invasions of their privacy. 47.Where celebrities are involved, there is perhaps a degree of reluctance on the part of some people to be concerned about the effect of false rumour and invasions of privacy. Such people think that celebrities, who need and 53 Terry (previously LNS) v Persons Unknown [2010] EWHC 119 (QB), [2010] 1 FCR 659. 25 assiduously court the oxygen of publicity, have no right to complain. However, it should be remembered that the internet isn’t simply interested with celebrities. It is democratic, even undiscriminating, in its interest. Any member of the public can upload videos of any other member of the public. You can sit on the tube and find yourself recorded for posterity on YouTube. Sometimes this can bring to light criminality, but in many cases, it can be used to mock and ridicule, or simply to invade privacy. How do we deal with this? 48.Some would suggest that there is nothing we can do about it. That the internet is an entirely lawless zone, the wild west of the 21st Century. But a recent development which should go some way to debunking the myth that the internet is a law-free-zone are the much publicised consequences of the recent Newsnight programme coupled with the editorial decision not to name names in relation to a child sex abuse scandal. 49.A short acquaintance with the way in which internet users responded to many super-injunctions would have given some idea of what could happen. The internet – Twitter in particular – was awash with names. Various people were supposedly identified, but it was no more than speculation, and indeed turned out to be utterly wrong, as became clear in short order. There have been some apologies and prompt out of court settlements on the part of the 26 mainstream media. But what of the internet: are the tweeters and bloggers beyond the reach of a writ for libel, or the criminal law, where criminal offences have been committed? The answer to that is plainly no. Individuals can be traced through their twitter accounts and their ISPs. The law is capable of enforcement, although there can still be problems when the account is based abroad. 50.In such cases the public interest in enforcing the law in the face of invasions of privacy, or other tortious or even criminal behaviour, is clear. If the law is not enforced, we not only run the risk of undermining the rule of law itself, but we start to chip away at the nature of civil society. Do we become a sniggering, virtual lynch mob prejudging people on rumour and speculation? Do we ignore or debase our need for privacy, to have a space, as Lord Mustill put it, in which we can securely tell others that they should mind their own business? 51.What harm does the absence of such a private space cause to individuals, their ability to grow and develop, to make mistakes and learn from them? In the past, reputation was often a matter of life or death, as the Salem witch trials or the McCarthyite purges of the 1950s demonstrate. If the law did not protect privacy, and was not capable of enforcement, would this come again? 27 affords, and the role it plays in promoting freedom of speech, can however be set aside in limited circumstances where, for instance, it is necessary to do so in the interests of democratic society. 56.Privacy is not only necessary for effective free speech in some instances, but free speech can also be invoked to justify the protection of privacy rights. Imagine a case where a newspaper is provided with information from a confidential source. The editor knows who the source is, and knows that the story will be even better if he names the source. An untrammelled commitment to freedom of expression would suggest that the editor should be able to name the source. But what of the source’s right to privacy? Should it be so easily set aside in the name of freedom of speech? 57.A question such as this was considered by the US Supreme Court in Cohen v Cowles Media Co in 199155 . The editor in that case relied on his First Amendment rights: his right to freedom of speech could not be abridged. If the US Supreme Court had adopted a simplistic approach to the right to privacy it might well have agreed. It did not though. It required the newspaper to hold to its promise of anonymity. The underlying point being 55 501 U.S. 663 (1991). 30 that privacy was essential to the source’s ability to fully assert their right to freedom of speech56. 58.Respect for privacy arises in respect of freedom of speech and of expression in another way. In the case of Mosley v News Group Newspapers Ltd57, Eady J, while describing the role of the state and the media in respect of individual rights, said that ‘[w]here the law is not breached, ... the private conduct of adults is essentially no-one else's business.58’ 59.We are often very interested in the private conduct of others, whether they are our neighbours or public figures. Where public figures are concerned, there is sometimes good reason to be interested. Private conduct may in such cases have a bearing on their public conduct. Sometimes it does not. That General Petraeus is said to have had an affair with his biographer is a matter which interests some members of the public, but it is a more open question whether it is in the public interest to publish the fact. Many people would say that it is, but in many other peoples’ view it is a matter between him, his wife and his biographer. 56 See E. Barendt, Privacy & Freedom of Speech, in A. Kenyon & M Richardson (eds), New Dimensions in Privacy Law (CUP) (2006) at 25 – 26. 57 [2008] EWHC 1777 (QB), [2008] EMLR 20. 58 [2008] EWHC 1777 (QB), [2008] EMLR 20 at [127] – [128]. 31 60.In this regard it is perhaps ironic that as we have become a more liberal society since the swinging sixties, we have also become more intrusive, critical and judgmental of the lives of public figures. We seem more interested in the conduct of our politicians now, than we did when Lloyd George was Prime Minister, or when FD Roosevelt or John F Kennedy was President of the US59. But perhaps we are just more easily able to find out what they do in private, and, these days, the media are more willing to report it. 61.One question which we may have to tackle is whether the internet will result in society becoming more critical and censorious – not just of those in positions of power, or of celebrities, but of each other. Or will we simply become unabashed and less censorious as we become ever more familiar with people blogging their intimate thoughts, details of their own and other peoples’ lives, loves and sexual liaisons on the net. Whatever the position, we are likely to have to consider how we properly balance the need to protect competing rights, such as the right of one person to blog details of a relationship with the need to protect the privacy of the other person in the relationship. 59 See for instance, H. Paterson, FDR's love nest in the park (Daily Mail) (25 November 2012) <http://www.dailymail.co.uk/news/article-2238223/FDRs-menagerie-alleged-mistresses-The-American- presidents-long-list-rumored-love-affairs-romanced-upstate-New-York-cottage.html>. 32