Here are my (belated) notes on Prof. Gavin Phillipson’s presentation on English privacy law, given to the first evening session of the Dublin Legal Workshop this year. It’s all well and good to take notes with a laptop, but finding time to tidy them up is another matter entirely! I also add some comments of my own regarding the direction of ‘privacy and law’ in broad terms.
He started off by reviewing the recent history of privacy law in England (since the incorporation of the ECHR’s Article 8 through the Human Rights Act), and the major cases of Campbell v MGN and von Hannover v Germany. This set the tone for what would be a major concern expressed throughout the talk – that the House of Lords had tried to figure out the scope of privacy (or ‘breach of confidence’ , as the traditional rememdy being ‘modified’), but the European court had also moved the goalposts of full ECHR compliance. In his concluding remarks, he found that the English courts’ attention to ECHR jurisprudence on privacy was “a one night stand, not an enduring relationship”, and that the common law continues to develop independently.
We heard a good summary of the historical cases, including Campbell and von Hannover – but I’ll spare you those notes. The summary question, for me, is whether ‘anodyne’ matters (and non-public duties occupying a middle ground on the privacy spectrum) are protected by (evolvoing) privacy law, and to a lesser extent how non-public fitures are treated.
He gave three suggestions on how the English courts could deal with the direcion from von Hannover, and then discussed three recent cases of interest: (McKennitt, A v B and Associated Newspapers v Prince of Wales). Those suggestions, incidentally, were:
1) reinterpret Campbell (noting that this would be a French-style right to one’s image (subject to public interest, official duties etc), and would be very unpopular from a legal and media point of view)
2) suggest that the Data Protection Act can deal with certain personal matters (but noting that this would be seen as inadequate as injunctions are not available)
3) Read down von Hannover, confine it to cases of serious harrassment, persistent etc (but again noting a problem, this being the Sciacca case where the release of a photograph of a woman suspected of fraud was a violation of Article 8 )
Phillipson expressed an argument that those that are considered to have done ‘bad’ things, those that the court disapproves of (e.g. Garry Flitcroft in the older A v B case, Jamie Theakston and the more recent A v B (dealing with disclosures by an ex-wife regarding drug addiction etc) are not likely to succeed in calling for the courts to protect their privacy, while the ‘blameless’ (the warbling McKennitt, the wonderful Prince Charles etc) or those who are the subject of theft (Douglas) are likely to win – and conveniently, the case that split the House of Lords, Campbell, is of someone ‘bad’ (drug addict) trying to be ‘good’ (going quietly to Narcotics Anonymous). I think that this criticism of the English courts stands as the strongest and most persuasive point of the presentation.
Responding, via Facebook, CCTV and more
If you just came here to find out what was said, you can stop reading here. The rest is all me.
My argument, expressed briefly iin questions and answers on the day and outlined in a bit more detail here, is that we are seeing two modern, contradictory trends. On one hand, the inescapable conclusion of Strasboug (and indeed, House of Lords) judgements is that the zone of personal privacy – the circle radiating outwards all the way through private sexual life to happy family moments (weddings) right the way to shopping trips, is expanding. But at the same time, the zone of personal privacy as expressed against the State is decreasing, especially in a ‘war on terror’ climate. CCTV, data retention and other unchallenged features of the modern age, extend the ability of the State (not to mention large corporations) to receive, collect, process, analyse and (often) act upon information that becomes closer and closer to the notional absolute-privacy-core.
From the point of view of the individual, this is deeply confusing. From the point of view of the libertarian or indeed the advocate of the ‘ordinary’ consumer, it is a nightmare. From the point of view of the media, it is disaster. Even from the point of view of the nosy neighbour, friend or gossip, it is a serious change to accepted ‘everyday life’.
Indeed, I’d argue that the two-faced treatment of privacy brings the concept of legal privacy into quite some disrepute. How else is one to rationalise the data-grab of the Irish government (link – McDowell etc) with the ability of Prince Charles to use privacy law to stop such and the persistence of unaccountable decision making (even despite the good work of FOI legislation).
This is madness, utter madness. When you have stories like that of the social networking site Facebook, which added a new ‘feature’ that pushed a user’s profile information onto a ‘mini-feed’ visible on friends’ pages, you see that the average, everyday citizen is accepting a high level of public or semi-public circulation of personal information. The same citizen is watched by cameras and has their Internet access logged and pored over. Gets unwanted mail from supermarkets and mobile phone spam. But the average, everyday princess, prince or dull Canadian singer is seeing their sphere of media-shunning influence expanding case by case. How do we make sense of it all?