Privacy loses its meaning

Part Eight of the spiked-report ‘Restraint or Revelation? Free speech and privacy in a confessional age’.

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• ‘Balancing’ free speech against privacy concerns allows the courts increasing powers to determine what should and should not be published.
• Attempts to interpret the law to protect free speech often limit it further.
• Human rights law has been rewritten to equate journalists with state authorities.
• People need privacy from the state.

‘Balancing’ free speech and privacy

At a time when privacy appears to mean all things to all people, all kinds of new reasons are given to ‘balance’ free speech against privacy concerns.

Privacy was viewed as a vague enough concept even before notions of emotional damage became incorporated into its meaning. As the authors of The Public Interest, the Media and Privacy, a survey of journalists’ and the public’s view of ‘privacy’, discovered in 2002: ‘the idea of privacy has changed over time in somewhat similar fashion to that of ideas concerning taste and decency.’ (1) As a result, when ‘privacy’ is used to limit free speech, its application always appears subject to arbitrary whims and morals.

The vagueness of privacy as a legal term is striking when it is contrasted with a clearer, more established term such as private property. Private property is a long established legal concept reflecting particular wealth and ownership interests between individuals. The idea of the protection of private information is established within the law of confidence, reflecting contractual relations between individuals who wish to stop information being made public. This, too, refers to agreed relations between people regarding property (in this case, where information is viewed as property).

The problem with trying to claim for a breach of privacy in law – as opposed to breaches of confidence regarding private information, for instance – was raised in 2002 by an influential group of UK barristers. Matrix Chambers – the Chambers that includes the Prime Minister’s wife, Cherie Booth QC – published a report titled Privacy and the Media – the developing law. In this report, the lawyers describe how damages for the tort of ‘breach of confidence’ can be claimed already. However, there is a technical problem with cases relating to privacy disputes that are brought to court as a breach of confidence.

The Matrix lawyers illustrate this problem through the example of a person who takes a surreptitious photograph of another person in a hospital bed. Before the law of confidence was expanded in recent court cases, a relationship of confidence would exist in a limited number of circumstances – such as between a patient and doctor. A relationship of confidence would not exist between the patient and journalist where the individuals did not even know each other.

But what the courts are now tending to do is establish a ‘deemed’ obligation of confidence by the intruder. (2) For example, as the Court of Appeal noted in the 2002 case of the Premiership footballer who brought a case against a newspaper to stop details of his extra-marital affairs from being published, a duty of confidence now arises in situations where a person ‘knows or ought to know that the other person can reasonably expect his privacy to be protected’ (regardless of whether the individuals know each other or not). (3)

In the case of Douglas, Zeta Jones and OK! vs Hello!, Lord Justice Sedley summed up the latest judicial thinking, saying: ‘The law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.’ (4)

One definition of ‘privacy’ today rests on the notion that people should not feel intruded upon. People bringing court actions against the media are also attempting to define privacy in terms of public spaces that they felt were private in some way: for example, a secluded part of a public beach (the case of Anna Ford, the newsreader who was photographed in a bikini), or a brothel (Jamie Theakston, the TV presenter who tried to stop prostitutes from speaking about their encounter with him.

The proposals for a new tort on invasion of privacy advanced by Matrix Chambers lawyers provide a good example of how difficult it is to offer clarity of any sort on privacy legislation in relation to free speech, despite numerous attempts by judges to do so. They attempt to resolve the problem contained within the law of confidence, where the courts have to invent ‘legal fictions’ – establishing a ‘deemed’ obligation where the parties do not know each other.

Instead, the lawyers propose that the courts recognise a specific tort on invasion of privacy, conferring a duty upon a person not to invade the privacy of other people. It would be made up of three legal elements: ‘an intrusion; into a person’s private life; which is highly offensive to a reasonable person of ordinary sensibilities.’ (5)

Given how difficult it is to establish legal concepts based on feelings (in this case, what is ‘highly offensive’ to a reasonable person), how will people know if they’ve invaded somebody’s privacy? The Matrix Chambers lawyers distinguish between ‘borderline’ cases of privacy intrusion and ‘highly offensive’ cases as if these delineations were obvious. They claim that ‘the publication of a trivial item of personal information’, for instance, is a ‘borderline’ case. (6) The obvious problem is that what is ‘trivial’ to one person may be highly personal and meaningful to another.
New legal concepts

In arguing for a new tort based on protecting people’s privacy from media intrusion, the authors of Privacy and the Media tip the ‘balance’ between the right to freedom of speech and the right to privacy in favour of the latter. The report argues that neither right has ‘automatic’ priority over another and that the ‘balance will be struck differently in different types of case.’ (7) These proposals assume that judges are the best arbiters of what counts as allowable speech. But why should the courts decide when the ‘balance’ should be tipped against free speech at all? Why shouldn’t the decision about what can be published be taken on the basis of editorial merit, rather than a concern not to offend?

At first sight, it could appear that the authors are concerned with tightening up the law to make privacy cases more difficult to bring against the media. The Matrix lawyers claim that, in clarifying the law, it wants to raise the legal threshold that complainants must use to prove they have suffered from an invasion of privacy.

Complainants could no longer rely on the vague definitions offered under existing law (where case law has developing in a confusing fashion) to allow them to bring a case against a journalist on the off-chance that they might succeed. They would have to show that the privacy invasion was ‘highly offensive’, and be satisfied that the defendant has no grounds for legal defence such as public domain (the information was already public), consent (the information was given freely by the complainant) or public interest (publication of the information has a strong public interest justification, such as the exposure of a crime) as stipulated under the new tort. (8)

The idea that a democratic society needs a free flow of information, without judicial interference, is not fully considered. The lawyers’ narrow focus on clarifying the scope of privacy law (which can be used to limit free speech) and free speech law (to give the media guidelines on what they can or cannot publish or broadcast) comes from a fundamental misunderstanding of the meaning of free speech.

It cannot be protected through setting clearly defined limits to what can or cannot be said – however generous those limits might seem. Free speech is a universal freedom, and it is indivisible. You either have free speech, or you do not.

The Matrix lawyers fail to address the crucial reasons why human rights law was originally intended to protect an individual’s right to privacy from the state, rather than from another individual. Although they refer briefly to the importance of free speech to a democracy, as it is emphasised by the English and European courts, the appreciation of the disproportionate power of the state and the threat this poses to individual liberty is missing from their analysis. Instead, they talk about ‘modern conditions’ and ‘ever-new facts’ that somehow require a new law (rather than a non-legal solution) to allow individuals to stop the free speech of others.

But as Bob Satchwell, Executive Director of the Society of Editors, puts it: ‘In the UK there’s a fundamental misunderstanding of the Human Rights Act. It is supposed to protect the people against an over-bearing state. It’s not to protect celebrities who are rich and powerful but the ‘little’ people…The ECHR was written by mainly British judges and lawyers after the Second World War. It was designed to protect against totalitarian states, to protect people against Hitler or Stalin. It was never designed to protect people against each other or, therefore, the media.’ (9)
The rewriting of human rights law

It is worth going back to the original human rights law regarding privacy. On 4 November 1950 Britain signed the European Convention for the Protection of Human Rights and Fundamental Freedoms. The original articles on freedom of expression and privacy are [Italics added]:

— Article 10 on Freedom of Expression: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers….’

— Article 8 on the Right to Respect for Private and Family Life: ‘Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right…’

The way the European Convention framed rights was not without problems. The Convention included situations when a right to free speech or privacy could be limited by the state, such as in the interests of national security. Furthermore, the European Convention frames the state’s role in terms of bestowing rights upon people, rather than ensuring that it does not impinge upon the rights that people have.

A comparison with the US Constitution is useful here. The US Constitution begins ‘Congress shall make no law…’ – acknowledging the idea of the free individual through implication – through the exemptions represented by the Amendments. Article 1 of the European Convention begins: ‘The High Contracting Parties shall secure to everyone…’ which implies the free individual through explication – implying the state must do something to secure freedoms. [Italics added] As journalist Sandy Starr has commented, ‘A human rights framework gives the state latitude to set the terms on which freedoms are negotiated, rather than giving individuals the ability to insist that absolute freedoms are protected.’ (10)

Nevertheless, at least the original focus of the European Convention was on the idea that rights were something held to protect individuals from the state, rather than to protect individuals from other individuals. As a survey of the human rights record on privacy of 50 countries, published in 2002 by Privacy International and the Electronic Privacy Information Center (EPIC), explains, the European Court of Human Rights ‘has expanded the protections of Article 8 beyond government actions to those of private persons where it appears that the government should have prohibited those actions.’ (11)

The authors of this survey point out that the European Commission of Human Rights already supported this idea in 1976. They found that: ‘For numerous Anglo-Saxon and French authors, the right to respect “private life” is the right to privacy, the right to live, as far as one wishes, protected from publicity…In the opinion of the Commission, however, the right to respect for private life does not end there. It comprises also, to a certain degree, the right to establish and develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one’s own personality.’ [Italics added] (12).

Today, as exemplified by the authors of Privacy and the Media, the discussion of privacy and the media has become even more personal. The focus is on privacy rights to do with individuals (especially journalists) who invade the privacy of other individuals by speaking about them. There is growing acceptance that intrusions into individual privacy by other individuals (including journalists) should be considered on a par with intrusions into private life by the state.

The way the European Convention has been interpreted by judges since 1950 has led to a widening remit of the state’s control over free speech in the name of protecting individuals’ privacy. And indeed, Matrix Chambers’ proposal for a tort for privacy invasion (as opposed to any other kind of law) reflects this growing emphasis on individuals. As one legal academic defines it: ‘A tort is a civil wrong in the sense that it is committed against an individual (which includes legal entities such as companies) rather than the state.’ (13)

The authors of Privacy and the Media do make a distinction between intrusions of privacy by the state and such intrusions by individuals. They mention that ‘it is important to distinguish between the right to be free from unwarranted state interference (what might be called ‘the human right to privacy’) and the private law tort of invasion of privacy. The latter has a much narrower range.’ (14)

Yet cases involving individuals (or the media) invading people’s privacy is taken as just another category alongside those to do with ‘public authorities’ – namely, the state. As Hugh Tomlinson QC, the editor of Privacy and the Media, notes: ‘On the one hand, the centrality of freedom of expression to a democratic society has been properly and repeatedly emphasised in both Strasbourg and, more recently by the English Courts…On the other hand, the increasing invasion of the private sphere by government and media has led to a strong trend of public opinion in favour of the protection of privacy.’ (15)

Furthermore, the authors of Privacy and the Media include an additional argument as to why free speech between individuals needs codification in law – or, to put it another way, why private conversation needs more legal protection from free speech. They write: ‘If a party to a private conversation is able to publicise its contents this, in turn, is likely to inhibit the freedom of expression of parties to private conversations.’ (16). This peculiar formulation presents limiting freedom of speech as a way of protecting it.

Of course, if you know somebody will repeat everything you say over the dinner table to a gossip columnist it will probably put you off the person, dinner, the gossip columnist or all three. But in turning the issue of free speech and privacy into an issue of private discussions between people, and the possibility that these might be made public by an eavesdropping journalist, this evades the key free speech issue: namely, the role of the state.
Journalists and state authorities

Compared to the British state, journalists should rank low down on the list of privacy invaders. As Simon Davies, director of Privacy International, pointed out following the publication of the 2002 survey on human rights and privacy, the British government is waging a ‘systematic attack’ on privacy.

The report outlines the emergence of new legislative and public authority powers in recent years. These include The Crime and Disorder Act (1998), which allows for information sharing and data matching among public bodies; The Regulation of Investigatory Powers Act (2000) (RIP), which allows any public authority designated by the Home Secretary to access communications data without a warrant; and The Anti-Terrorism, Crime and Security Act (2001), which allows the Secretary of State to issue a code of practice to retain communications data held by communications providers to protect national security.

In 1997, a report commissioned by the European Parliament confirmed that Britain was a key player in Echelon, the global signals intelligence operation controlled by the National Security Agency (NSA) in the USA. Both countries routinely intercepted large amounts of sensitive data. And up to £400 million a year is spent on 1,500,000 CCTV cameras across Britain. (17)

Journalists may gather more information than most people in their jobs. They can publish or broadcast information and images in media outlets with mass readerships or audiences. There is good reason not to trust a journalist; they aren’t necessarily going to be your PR agent or best friend. But unlike the state authorities, journalists do not amass information on every individual in secret alongside powers to fine or imprison them. The impetus of the media is to publish information and images. This may not be favourable to the subject of a story – but they are only words and images, which can be publicly refuted, or ignored.

Nevertheless, people surveyed in questionnaires tend to support the surveillance methods used by public authorities more than those by the media. In a survey comparing respondent’s attitudes to surveillance published in The Public Interest, the Media and Privacy, 51 percent strongly agreed that security cameras in public places were a good idea; only 6 percent strongly agreed that the media should be free to use pictures of people photographed, for example, in a public place. (18) These days Big Brother is trusted more than fellow citizens.

But the idea that people oppose media intrusion is based on misconceptions that are rarely challenged. Questionnaires on media and privacy issues normally ask if the media should be censored – as if only journalists exercise free speech or discuss private issues. A 1992 MORI poll on behaviour of the press asked respondents about their attitudes to press intrusion. Fifty-one percent thought the press intruded too much on the public involved in news stories, although 40 percent thought it was justifiable to invade the privacy of politicians. (19).

An ICM/Guardian poll in 1997 asked people if they supported a law to protect the private lives of public figures against media intrusion: 9 out of 10 people said that they did. (20). Few surveys ask interviewees whether they would accept restrictions on their free speech if somebody claimed they had invaded a private life. The Media is always pitted against The People – the former are the privacy invaders and the latter the victims of privacy invasion.

In fact, plenty of non-journalists thank the media for publishing information about their personal lives, or for highlighting something they want said in public. In 2001 only 24 percent of all complaints to the PCC about the media were brought relating to privacy – the rest are mainly for inaccuracy.

Free speech and privacy rights are frequently posed as rights in conflict. In reality, however, free speech is not at odds with privacy at all. Both are liberties, requiring freedom from the state.

The new definitions of privacy discussed in this report subvert the meaning of privacy. Privacy is taken to mean protection from the views of other individuals, which requires that the state play a more active censorship role. The outcome is less privacy, and speech that is not free.

The key reason why free speech and privacy are now considered in competition with each other is because the state has decided to give individuals a legal right to curb each other’s speech in the name of ‘a right to privacy’, with its modern and ever-changing definition. This sets up a legal conflict between individuals that may seem to benefit one side of the argument, but is rarely so clear-cut.

One person may invoke ‘privacy’ to censor somebody who the next day could do the same to them. Plenty of non-journalists edit newsletters, have web pages on the internet, send out flyers or put up posters in their local town if something is important to them. If journalists are stopped from discussing or investigating an issue then potentially, so can anyone.

In 2002 Lord Wakeham, the former chairman of the Press Complaints Commission (PCC), said with respect to the press, ‘the main concern is not whether we should protect individual privacy, but how?’ (21) Surely a better question in terms of the media law, is not whether we should protect individual privacy, but from whom?

• Point five: Privacy should mean freedom from the state.

This is part eight of the spiked-report ‘Restraint or Revelation? Free speech and privacy in a confessional age’.

Read on:

Part Nine: Privacy, free speech and the media: some conclusions

Part Ten: Contents and acknowledgements
Part One: Restraint or Revelation? Free speech and privacy in a confessional age

Part Two: Privacy vs free speech: two competing rights?

Part Three: A qualified right to free speech

Part Four: Free speech and trivia

Part Five: Free speech and the ‘right to know’

Part Six: Free speech and the public interest

Part Seven: The confusion over privacy

(1) Professor David Morrison and Michael Svennevig, The Public Interest, the Media and Privacy, (BBC et al, March 2002), p3

(2) Privacy and the Media – the developing law, Matrix Media and Information Group, (Matrix Chambers, 2002), p8

(3) Lord Chief Justice Woolf in the case of A v B & C, Court of Appeal, 11 March 2002 [2002] EWCA Civ 337

(4) Quoted in Private Lives, Public Obsession, by Barbara Hewson

(5) Privacy and the Media – the developing law, Matrix Media and Information Group, (Matrix Chambers, 2002), p14

(6) Privacy and the Media – the developing law, Matrix Media and Information Group, (Matrix Chambers, 2002), p15-16

(7) Privacy and the Media – the developing law, Matrix Media and Information Group, (Matrix Chambers, 2002), p16

(8) Privacy and the Media – the developing law, Matrix Media and Information Group, (Matrix Chambers, 2002), p36

(9) Bob Satchwell, Executive Director of the Society of Editors, in a speech given at a debate organised as part of the research for this report at the Sugar Reef nightclub, 2001

(10) Human Rights RIP, by Sandy Starr

(11) ‘Privacy and Human Rights Survey’, 5th edition, Privacy International and the Electronic Privacy Information Center (EPIC), September 2002, p5

(12) ‘Privacy and Human Rights Survey’, 5th edition, Privacy International and the Electronic Privacy Information Center (EPIC), September 2002, p5

(13) John Cooke, Law of Tort, Longman, Pearson Education ltd., 2001, p3

(14) Privacy and the Media – the developing law, Matrix Media and Information Group, (Matrix Chambers, 2002), p11

(15) Privacy and the Media – the developing law, Matrix Media and Information Group, (Matrix Chambers, 2002), p1-2

(16) Privacy and the Media – the developing law, Matrix Media and Information Group, (Matrix Chambers, 2002), p17

(17) Privacy and Human Rights Survey, 5th edition, Privacy International and the Electronic Privacy Information Center (EPIC), September 2002, UK and Northern Ireland section, p7

(18) Professor David Morrison and Michael Svennevig, The Public Interest, the Media and Privacy, (BBC et al, March 2002), p90

(19) ‘Behaviour of the Press: Calcutt II,’ Mori, September 1992

(20) ‘Protecting Privacy,’ Guardian/ICM opinion poll, 12 November 1997

(21) Lecture given by Lord Wakeham on 23 January 2002, quoted in Privacy and the Media – the developing law, Matrix Media and Information Group, (Matrix Chambers, 2002), p2