Privacy

Standard Note: Last updated: Author: Section SN/HA/5978 23 May 2011 Grahame Danby Home Affairs Section

The incorporation into UK law of the European Convention on Human Rights has led to the development of privacy law. This note summarises the effect of the Human Rights Act 1998 and the recent controversies over the use of injunctions and super-injunctions. A particular tension exists between the Conventions‟ Article 8 right to privacy and the Article 10 right which provides for freedom of expression. The Human Rights Act provides that the courts have particular regard to the right to freedom of expression. In many other European countries the balance is shifted more towards securing privacy of the individual. A super-injunction is a court order which requires that, when an injunction is in place, its very existence may not be disclosed or published. Following concerns over the use of superinjunctions, notably in privacy cases, the Master of the Rolls (Lord Neuberger) set up a committee which reported on 20 May 2011. Three days later, the Attorney General (Dominic Grieve) announced that a joint committee of both Houses would be established to investigate further. One particular matter is the ease with which injunctions and super-injunctions can be circumvented by the internet and newspapers outside England and Wales.

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under section 6. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security. for the prevention of disorder or crime. the courts as public authorities have a duty to protect Convention rights and therefore to apply the law.2 1. 2. The extent of the "horizontal" application of the Human Rights Act as between private parties has been the subject of extended academic debate. While it binds public authorities directly. also applies in all cases. super-injunctions and “hyper-injunctions” Report of the Committee on Super-Injunctions 1 1. In March 2004. in a way that complies with these rights. covers virtually the entire European continent.1 1. the duty to interpret legislation compatibly with Convention rights "so far as is possible to do so". one rationale being that public authorities such as governments should put in place laws to ensure the European Convention is respected. the Joint Committee on Human Rights added further commentary in the context of the Human Rights Act 1998 which incorporates the Convention formally into UK law: 86. First. courts have applied it “horizontally” to private organisations. under section 3. Article 8 of which bears repeating here: Article 8 – right to respect for private and family life: 1. This provides for some commonality in privacy laws by dint of the European Convention on Human Rights. The Act's limited horizontal effect arises from two provisions. for the protection of health or morals. including those involving purely private bodies. but it is generally accepted that these provisions fall far short of full horizontal effect.1 Privacy and Europe United Kingdom The Council of Europe.Contents 1 Privacy and Europe 1. This offers a qualified right to privacy. or for the protection of the rights and freedoms of others. Although the Human Rights Act imposes direct obligations to protect Convention rights only on public authorities. Second. public safety or the economic well-being of the country. his home and his correspondence. the Act does allow the Convention rights to have some impact on the development of the law in the private sphere. Everyone has the right to respect for his private and family life. which would apply 2 . 87. with its 47 member countries including all member states of the European Union and Russia. in all cases before them.3 2 3 United Kingdom Other European countries Data protection 2 2 3 5 5 6 Injunctions. based in Strasbourg.

. Lord Wakeham proposed an amendment which would have excluded the application of what is now section 6 of the Act to disputes between two private parties. Duncan Lamont. there is a stronger and more enshrined tradition of privacy than in the UK.. the Government inserted section 12 of the Human Rights Act: this provides that the courts had to have “particular regard” to the right to freedom of expression and could not grant interim remedies unless satisfied that the applicant is “likely to establish that publication should not be allowed”. may be subject to such formalities. Instead. in the case of the press. the “privacy” issue caused considerable anxiety in media circles when the Human Rights Bill was before parliament: in addition to Lord Wakeham‟s amendment. HL 39/HC 382 2003-04 HL Deb 24November 1997 cc771-87 Privacy – the way ahead? Part 3 – Options for the Future – Hugh Tomlinson QC (May 2011) Privacy: the way ahead? Part 2 – Hugh Tomlinson QC (May 2011) 3 . This Article shall not prevent States from requiring the licensing of broadcasting. the press suggested a provision giving them immunity from the provisions of the Act or the removal of Article 8 from the incorporated rights.3 Hugh Tomlinson QC has offered the following remarks: . conditions. The exercise of these freedoms. for the protection of health or morals..the obligation to comply with Convention rights to both private and public persons on an equal basis. 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. During the passage of the Human Rights Bill 1997/98. for preventing the disclosure of information received in confidence. This places a higher hurdle in front of privacy injunctions than that which applies in other cases (where it is only necessary to show a “serious issue to be tried”)4 1. in the interests of national security.. A Guardian article has commented: In much of continental Europe.2 Other European countries The tension between Articles 8 and 10 creates an opportunity to adhere to the Convention in ways that are different but still within the “margin of appreciation” afforded individual states. The Meaning of Public Authority under the Human Rights Act. but has also allowed several high profile politicians to lead the sort of colourful private lives that would have been splashed across newspaper stands in England for weeks on end. But 1 2 3 4 Joint Committee on Human Rights. territorial integrity or public safety.1 The Article 8 privacy rights.2 The amendment was withdrawn – a fact that has contributed to the development of privacy law by the courts (but see below). notably. have also to be balanced by other convention rights. for the protection of the reputation or rights of others. television or cinema enterprises. media partner at City solicitors Charles Russell LLP. restrictions or penalties as are prescribed by law and are necessary in a democratic society. 2. This has offered more protection to the public. said: "In Germany and France there is a long tradition of privacy and the press adhere to it. for the prevention of disorder or crime. already qualified. or for maintaining the authority and impartiality of the judiciary. since it carries with it duties and responsibilities. by Article 10: Article 10 – freedom of expression 1. Everyone has the right to freedom of expression.

Privacy laws tend to reflect the media cultures in which they operate. Press standards. In Germany. the Federal Constitutional Court has recognised the citizen's right to personal respect. This has echoes of the public interest justification available to British journalists in the Press Complaints Commission‟s Editors’ Code of Practice. provides specific guarantees regarding the treatment of personal data by journalists. The same news values do not apply in Britain. They explained that this was because the footballer's professional performance might be affected while the politician's would not. study6 on press and media freedom in Europe: . it should be noted that the approach to privacy law in the UK both before and since 2000 stands in contrast to the approach elsewhere in Europe. 5 6 “Superinjunctions.uk. 26 April 2011 Request 1706. and ongoing.. Prime Minister Silvio Berlusconi has had recourse to privacy laws over the use by Italian and Spanish publications of photographs taken at private parties he held. meanwhile. but not a story about a politician having an affair. Before we pass on to considering the impact of the Human Rights Act. the right to privacy is held to be implicit in the constitution.co.there has also been a long.). European Centre for Parliamentary Research and Documentation 4 . In Italy recently. 196 of 2003) which promoted the adoption of an ethical code by journalists. which were allegedly attended by escort girls. A German court held that the publication of photographs of Princess Caroline of Monaco with her children breached her constitutional rights. and. the regulation of privacy hinges on the criterion of essentiality. Press and Media freedom in Europe. also by means of punishment under the criminal code. Rights to control over personal information have been strictly interpreted by the French courts. Colleagues in the Italian Chamber of Deputies have provided the following commentary in the context of a new. and perhaps scandalous. 136 et seq. and the French Civil Code has included a specific right to privacy since 1970. 196. in order to be legitimate. and also because readers would not be interested in a politician's affairs." 5 Some additional background has been given by the Culture. privacy and libel (HC 362 2009-10): 11. guardian. by the so-called „privacy code‟ (legislative decree no. in particular. as we were reminded during our visit to Spain. tradition of public figures – [former French president François] Mitterrand for one – getting away with no intrusion into their private life that would not be possible here. Although the above-mentioned Legislative Decree no. including a right to control one's own image in private life.. for the purpose of compatibility between the right to privacy and the right to inform (arts. Staff at La Vanguardia told us that their newspaper would publish a story about a footballer having an extra-marital affair. it is a moot question whether the freedom of information finds a specific limit also in the so-called right to personal privacy (which is not specifically provided for in the Constitution). Media and Sport Committee in its February 2010 report. too. In the Italian system the right to privacy is guaranteed. injunctions and privacy laws around the world”. In France. it is generally recognized that compatibility exists between the right to the protection of such data and certain forms of publication of information and news in which the public or collective interest prevails. these can be very different from the UK's. 12. the publication of the information must be essential to the news reported. for example.

1. the confusion over this issue has caused us the very gravest concern that this freedom is being undermined. the Culture. In the UK. Putin. as well as the comments by the Lord Chief Justice on the Trafigura affair. and strongly urge that a way is found to limit the use of super-injunctions as far as is possible and to make clear that they are not intended to fetter the fundamental rights of the press to report the proceedings of Parliament. Since then. followed by the Government‟s response. privacy and libel which considered. However. On 24 February 2010. the Moskovsky Korrespondent. Reproduced below are two of the Committee‟s recommendations. DPA 1998 section 32. we hope that a clear statement regarding the way forward is made before the end of this Parliament. Publication of the paper was subsequently suspended.A celebrated example from the Russian press was reported by the New York Times on 19 April 2008. Media and Sport Committee published a report on Press standards. The best current legal estimates are that there are somewhere between 30 and 50 in existence today. although the nature of these legal orders means that in some cases it is not even possible to report on their existence.7 provided there is a reasonable belief that publication would be in the public interest. the latter being published in April 2010: 2. 152-FZ of 27 July 2006) 5 . (Paragraph 101) 2. reportedly for financial reasons.8 Data protection laws are largely harmonised across the EU. among a detailed discussion of privacy law and other matters.9 2 Injunctions. the use of super-injunctions and their impact on parliamentary debate.20 The free and fair reporting of proceedings in Parliament is a cornerstone of a democracy. Given the importance of these issues. A recent Guardian article reported on the prevalence of such injunctions: The first superinjunction may have been taken out in 2008: it may even still be in force today.21 We welcome the Speaker’s determination to defend freedom of speech in Parliament.3 Data protection The Data Protection Act 1998 is probably the closest we in the UK have to a statutory privacy law – even here the press enjoy an exemption. super-injunctions and “hyper-injunctions” A super-injunction is a court order which requires that. as not all have been served on the Guardian. when an injunction is in place. publication of fair extracts of reports of proceedings in Parliament made without malice are protected by the Parliamentary Papers Act 1840. DPA 1998 Law on Personal Data Protection (Law No. (Paragraph 102) 2. but it is hard to be definitive. A Russian newspaper. Russia provides a prominent example of a non-EU state that has in recent years continued to develop analogous legislation of her own.22 The Government believes that freedom of speech in Parliament is fundamental and that accurate reporting of parliamentary proceedings is essential in a democratic 7 8 9 section 3. its very existence may not be disclosed or published. We therefore repeat previous recommendations from the Committee on Parliamentary Privilege that the Ministry of Justice replace the Parliamentary Papers Act 1840 with a clear and comprehensible modern statute. their use has proliferated. They cannot be fettered by a court order. had published rumours about the private life of the then President Vladimir V. though.

In short. not only are “hyper-injunctions” not a “new form” of privacy injunction – they appear to be limited to a single example made some 5 years ago in a non-privacy case. Hugh Tomlinson QC has set out the general privacy background. are appropriate: such as in some family. 2. there no suggestion that such a provision has been included in any privacy injunction. includes background on so-called hyper-injunctions: We should also mention so-called “hyper-injunctions”. As the Committee has stated.23 The Government joins the Select Committee in welcoming the comments made by the Lord Chief Justice on the use of super-injunctions and takes seriously the concerns expressed by the Committee over the use of super-injunctions. as stated by the Lord Chief Justice in his statement. The only example he cited was from a 2006 commercial case which apparently concerned an allegation that paint used on the water tanks of passenger ships could be poisoning the water (the case he referred to was a court order recording an agreement which was not an injunction at all. even those which prevent the reporting of the injunction itself. Privacy law: the super-injunction is dead. It reported on 20 May 2011. Nothing else is known about the 2006 case or about the reasons why such an order was made. fraud or national security cases. when considering whether or not to grant an injunction which might affect the right to freedom of expression. This was a term introduced by John Hemming MP in a debate in Westminster Hall on 17 March 2011to describe an injunction which prohibits a person from contacting his MP. papers. reports of the mere existence of an injunction might alert the accused‟s associates. The Committee‟s terms of reference were: 6 . including the following observation: Although section 12(4) of the Human Rights Act provides that. who may then dispose of their assets. the Court must "have particular regard to the importance" of this right. provided that such publication is bona fide and without malice. However. The Government will consider the possibility of putting the provisions of the Parliamentary Papers Act 1840 into a modern statutory form when a legislative opportunity arises. in a fraud case. there are cases where injunctions imposing reporting restrictions. with a view to producing evidence-based recommendations for any necessary changes to the Civil Procedure Rules and Practice Directions (see above). For example.society. votes or proceedings.24 The Master of the Rolls has now set up a committee to look at the issues relating to superinjunctions and other injunctions which bind the press. The above-mentioned committee established by the Master of the Rolls (Lord Neuberger) reported on 20 May 2011 (see below). this does not mean that the right should be given precedence. As a number of privacy lawyers commented at the time. 3 Report of the Committee on Super-Injunctions The Committee on Super-Injunctions was set up by the Master of the Rolls (Lord Neuberger of Abbotsbury) in April 2010. The Government notes that never has an injunction been sought or granted with the intention of preventing press reporting of parliamentary proceedings. the Parliamentary Papers Act 1840 protects publications of extracts from or abstracts of parliamentary reports. A recent blog. 2. see the Head of Legal blog post about Mr Hemming‟s speech and in particular the comments on the post).

Among the Committee‟s conclusions and recommendations are the following: Serious concerns have been frequently expressed about issues both of substantive law and of policy relating to privacy and freedom of speech. [.   The Committee made recommendations on the following:     The practice and procedure governing interim injunctions which restrict freedom of speech. could conceivably restrict or prohibit Parliamentary debate or proceedings. at a more general level. Super-injunctions and the reporting of Parliamentary proceedings. and the communication of information concerning the same to Parliament and the public. to make proposals for reform. the balance to be struck between them in a democratic society and the proper application of section 12 of the Human Rights Act 1998 (HRA s12). The latter has been proposed by Max Mosley though a Strasbourg judgement found against him.. To provide a clear definition of the term super-injunction. and Where appropriate. and their impact on the principles of open justice bearing in mind section 12 of the Human Rights Act 1998. or any other court order. [. No super-injunction. Such issues can only properly be considered and resolved by judges in individual cases before the courts or.] Article 9 of the Bill of Rights 1689 recognises and enshrines a longstanding privilege of Parliament: freedom of speech and debate. and anonymised injunctions. including super-injunctions and anonymised injunctions. The collection of data about super-injunctions. The use of specialist judges to determine applications for super-injunctions. 7 .. Any attempt by the courts to go beyond that constitutional boundary would be unconstitutional.] Where media reporting of Parliamentary proceedings does not simply reprint copies of Hansard or amount to summaries of Hansard or parliamentary proceedings they may well not attract qualified privilege.. and particularly to make recommendations for any changes to the Civil Procedure Rules (CPR) and Practice Directions. It is an absolute privilege and is of the highest constitutional importance. referring to the “chilling effect” on free speech that any requirement to notify the subject prior to publication would have. including super-injunctions and anonymised proceedings. The Committee did not consider what it called issues of substantive law reform. To examine issues of practice and procedure concerning the use of interim injunctions. by Parliament legislatively. Examples would have been the development privacy law under Article 8 of the European Convention on Human Rights and the introduction of a pre-notification requirement by media organisations..

trading off threatened sex stories for media cooperation and all the traditional methods of the popular media. The next few weeks may demonstrate whether this leads to truce or constitutional crisis. front. and topical context. In this endeavour it is backed by a number of headline hungry politicians who can now invoke the ancient privileges of parliament in support of the constitutional right to publish tittle tattle. is the ease with which injunctions and super-injunctions can be circumvented by the internet and newspapers outside England and Wales. Far from ending the battle between media and judiciary the Neuberger Report seems to be in danger of opening a second. it is unclear whether it would be protected at common law from contempt proceedings if it breached a court order. the International Forum for Responsible Media Blog stated: The Neuberger report has given the media some of what it wants – in particular.Where media reporting of Parliamentary proceedings does not attract qualified privilege. this is highly unlikely to be enough. as is plain from the reporting we have mentioned. But.. On 23 May 2011. Commenting on press reaction to the Committee‟s report. parliamentary. One particular. The tabloid media wants an end to privacy injunctions of all kinds – back to the good old days of kiss n‟ tell.. 8 . prenotification of injunction applications and confirmation of the already existing position (as discussed on this blog) that “super-injunctions” are effectively dead. the Attorney General (Dominic Grieve) told the House of Commons that the Prime Minister had asked for a joint committee of both Houses to investigate the use of privacy orders.

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