Privacy Law: Practical and Moral - Essay Example

Privacy Law: Practical and Moral? Introduction The law of privacy in the UK is not contained as a separate offence from its containment in the Human Rights Act 1998. Before this, privacy was defined by a traditional value approach based on free press, which it was considered protected adequately the rights of individuals.1 The lack of statute to accompany the law of privacy as embodied in the HRA 1998 is intriguing, particularly if attention is drawn to other forms of ‘privacy’ laws such as defamation. However, the courts have collected a considerable amount of case law on the reach and boundaries of privacy, attempting to define when the privacy of individuals can be infringed and under which circumstances. But upon which considerations are such infringements based? This paper will briefly examine the law of privacy in the UK, and analyse whether infringements of privacy can be linked to moral and/or practical considerations. The Law of Privacy Contained in article 8(1) of the European Convention on Human Rights, the freedom of privacy afforded to individuals is based on the premise that individuals have the right to live their personal lives freely without unjustified interference.2 Of course, exceptions exist, and article 8(2) allows infringements of privacy to occur provided they are prescribed by law and considered necessary to preserve or protect certain interests such as the protection of health, morals, public safety and national security. The law of privacy’s initial birth was intended as a form of protecting individuals against the state, primarily in response to the latter’s powers of detention, censorship and expropriation.3 The Scope of Privacy Law The scope of privacy under article 8 is somewhat broad, and it has been argued that its boundaries should be more clearly defined in UK law.4 Previous attempts of the courts to define privacy simply as the freedom to live one’s life as he/she chooses.5 However, more comprehensive (and indeed lengthy) definitions have been interpreted to include “the personal space in which the individual is free to be itself, and also the carapace...which protects that space from intrusion”.6 As one can see, the scope and boundaries of privacy law are somewhat confusing, and certainly difficult to define with any degree of clarity. While this affords this area of law a considerable degree of flexibility, it also requires close examination of what considerations serve to contribute to the justification (or not) of infringements of privacy. Interestingly, the courts have been reluctant (or unable) to develop a tort of invasion of privacy.7 The general stance of the courts is that domestic law should not establish a general right to privacy.8 However, decisions of the European Court of Human Rights have declared that the UK breaches article 8,9 although the Human Rights Act 1998 to a great extent eased this problem. Decisions subsequent to the passing of the HRA began to define the scope of the right to privacy it affords, and the landmark case of Douglas v Hello! Magazine10 led to the establishment of a right to privacy. A new law of privacy has however not been created; rather the implementation of article 8 ECHR and the extension of the law of confidentiality has defined the law of privacy in the UK.11 Practical and Moral Considerations? The case law surrounding the law of privacy is sporadic and difficult to distil down to specific criteria. What are the rationales behind the approach of the law to its protection (or not) of the privacy of individuals? Primarily, it is possible to establish that the courts are less protective of the privacy of the famous. The courts appear to take a ‘common sense’ approach in that it recognises that there is a genuine public interest in the lives of the famous. Consequently, information which does not reveal private information does not amount to infringements of privacy.12 The rights of individuals against the state are a somewhat perplexing matter. It appears that the state has been careful to reserve the right to interfere in the lives of individuals, quoting elusive and broad reasons. A controversial case, R v Brown13 depicts the extent to which the state deems the privacy of individuals to be subject to moral considerations. There is little other justification for preventing consenting adults from committing sado-masochist acts in the privacy of their own homes; the courts’ claim that it was a matter of public health heaves with moral considerations and disapproval. Moreover, the growing ‘need’ to access individuals’ information has been criticised as eroding the right to privacy.14 Although laws such as the Data Protection Act and the Regulation of Investigatory Powers Act purport to narrow the boundaries of the potential to infringe individual’s rights, they are indeed “riddled with gaps and contradictions”.15 Can any comprehensible stance of the law be ascertained? It is suggestible that the case of Campbell v Mirror Group Newspapers (MGN)16 went as far as to establish a practical test for establishing whether an invasion of privacy took place. The court in this case established a test which asks whether there was a reasonable expectation of privacy, and whether the interest in upholding the right to privacy outweighs the interest in infringing that right. If it is not obvious that the information is not supposed to be private, then the courts must assess whether a person of ‘reasonable sensibilities’ would take offence if the information were to be disclosed.17 This leg of the test has been criticised as being “a fairly bizarre subjective-objective test”.18 Despite criticisms of the current law, particularly the lack of the general right to privacy as a separate established legal right, there is evidence that the ‘law’ of privacy is based on both practical and moral considerations. The general stance that celebrities have ‘less’ of a right to privacy than others embodies the practical notion that fame indeed brings attention, and the moral assessment that a person who chooses to live their life in the spotlight should not be able to sue every person who takes a photograph of them – the floodgates potential here would be overwhelming. Similarly, the law in relation to private individuals has developed and evolved considerably over time: the law of privacy moved from just property rights to the person and has now encompassed the right to enjoy life. This highlights that “the common law, in its eternal youth, grows to meet the demands of society”.19 This suggests that both a moral and practical approach has already been adopted by the law. Yet what of infringements of the right to privacy? Does the stance of the law require further moral and practical grounding, or is its stance to the general protection of rights consequential to its allowing of the infringement of rights? In general, the courts have struggled to maintain a balance between the protection of the privacy of individuals as well as the freedom of expression of others. Accompanied with the added requirements to infringe individuals’ right to privacy for legitimate interests, the approach of the courts requires both a moral and practical approach. In the past, infringements of individuals’ privacy have been permitted for the safety of the public,20 as well as other such general interests which outweigh the interests of the individual concerned. The general stance of the courts appears to be that the interest of the individual “may be outweighed by some other countervailing public interest which favours disclosure”.21 Conclusion It thus seems that indeed both a moral and practical approach is required in relation to the infringement of privacy. However, there may exist circumstances in which the two approaches may conflict – the dubiousness of moral assessments is often difficult to reconcile with practicality, and it appears that the courts will favour practicality over morality when a conflict does occur. Moreover, the apparent lack of a single law of privacy is problematic for the courts. It seems that the problem has been left to the courts who have responded by "creating a sort of privacy law”.22 There is little doubt that the courts have been faced with a difficult problem, particularly in balancing human rights with privacy laws.23 What is clear is that the law requires a great deal of development and evolution if its approach is to be defined as moral and/or practical in any clear manner. The law as it stands contains a great deal of ‘gaps’ which need to be filled if a specific approach is to be located.24 Bibliography Deacon, R.; Lipton, N. & Pinker, R., Privacy and Personality Rights: Commercial Exploitation and Protection. London: Jordan Publishing, 2011. Equality and Human Rights Commission, ‘Protecting Information Privacy’, Research Report 69, www.equalityhumanrights.com. Friedmann, D. & Barak-Erez, D., Human Rights in Private Law. Oregon: Hart, 2001. Gibb, F., ‘Is it time to pull out of the European Court of Human Rights?’, The Times 24/02/2011b. Gibb, F., ‘New Privacy Law “Will Make no Difference” to Judges’ Role’, The Times http://www.thetimes.co.uk/tto/law/article3002872.ece, accessed 12/06/2011a. Horsey, K. & Rackley, E., Tort Law, 2nd ed., New York: Oxford University Press, 2011. Klug, F. & Starmer, A., ‘Standing Back from the Human Rights Act: How Effective is it Five Years On?’ (2005) Public Law 716. Warren, S.D. & Brandeis, L.D., ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193, 193-196. Cases A v B plc and Another [2002] 3 WLR 542. Anufrijeva v Southwark LBC [2004] Q.B. 1124. Attorney-General v Guardian (no 2) (1990) 1 AC 109. R v Broadcasting Standards Commission ex p BBC [2001] QB 885. R v Brown (1993) 97 Cr App R 44, (1994) 1 AC 212. Campbell v Mirror Group Newspapers (MGN) [2004] UKHL 22. Douglas v Hello! Magazine [2001] 2 WLR 992. Malone v Commissioner of Police [1979] Ch 344. Orejudos v Royal Borough of Kensington and Chelsea [2003] EWCA Civ 1967. R (on the application of Razgar) v Secretary of State for the Home Department (No.2) [2004] UKHL 27. Sir Elton John v Associated Newspaper [2006] EMLR 772. W v Egdell (1990) Ch 359. Wainwright v Secretary of State for the Home Department [2004] 2 AC 406. Wainwright v United Kingdom (12350/04) (2007) 44 E.H.R.R. 40. Read More