The Law of Privacy in the UK - Essay Example

?Privacy Law: Practical and Moral? Introduction The law of privacy in the UK does not exist as a separate offence from its embodiment in the Human Rights Act 1998.i Before the Human Rights Act, privacy was formed and interpreted by a traditional approach based on the value of free press, which was considered to suitably protect the rights of individuals nonetheless.ii The lack of UK legislation and statute to enshrine the law of privacy as it is contained in the HRA 1998 is somewhat controversial, particularly if one’s attention is directed towards other provisions of ‘privacy’ laws such as defamation. Yet the courts have amassed an impressive and comprehensive amount of case law which defines the limitations and reach of privacy principles and concepts, in a bid to define when the privacy of individuals can be violated and under which circumstances violations are justified.iii Yet what basis do considerations claim to be placed upon in order to justify or prevent such infringements of privacy? This essay will explore the law of privacy in the UK as it is contained in common law and the HRA 1998, and assess whether infringements of privacy can be placed upon practical and/or moral justifications and considerations. The Law of Privacy As embodied in article 8(1) of the European Convention on Human Rights, the freedom of privacy assigned to individuals is dependent upon the principle that individuals have a necessary right to live their personal lives free from unjustified interference.iv As is the case with any appeal to such a broad-reaching principles, there is clear evidence of exceptions to this right, and article 8(2) provides for infringements of privacy to be undertaken and permitted so long as they are prescribed by law and deemed necessary to protect or preserve certain prevailing interests such as the protection of morals, health, public safety and national security. It will be assessed below, however that the existence of this subsection has caused some trouble in the courts, particularly in terms of how they have struggled to balance infringements of the right with the need to uphold it. The birth of the law of privacy was intended to provide a method for protecting individuals against state infringements of privacy, particularly in relation to the state’s powers of censorship, detention and expropriation.v It is clear that the courts have “proceeded to develop the common law by reference to Convention rights”,vi though whether they have undertaken moral and practical approaches to the protection of this right is difficult to ascertain with clarity. This paper will argue that the very lack of actual privacy law in the form of statue in the UK has caused the courts to struggle with its definition, application and interpretation of the right to privacy. However, it will be shown that this very lack of statute has rendered the courts unable to avoid making moral considerations. The Scope of Privacy Law Article 8 in its definition of the scope of privacy is rather broad and it has been suggested that the boundaries of this principle should be more specifically defined by UK law.vii This is because such broadness renders the principle open to unpredictable and inconsistent interpretation, which threatens the very content of its existence. Previous endeavours of the courts to define the content of privacy law simply describe it as the freedom to live one’s life as an individual chooses.viii Yet more inclusive (and of course more complicated) definitions have been employed to include “the personal space in which the individual is free to be itself, and also the carapace...which protects that space from intrusion”.ix It is evident that the reach and limitations of privacy law are rather complex and a little confusing, and indeed taxing to define with any strong level of clarity. While this assigns this area of law a noticeable degree of flexibility, it also necessitates closer examination of what particular considerations function to justify or prohibit infringements of privacy. Indeed, the very flexibility that vagueness provides threatens to compromise the certainty and clarity of the law. This is particularly the case when the law of privacy comes up against the media: “for years there has been a feeling that the law must afford some remedy for the...evil of the invasion of privacy by newspapers”.x It is intriguing that the courts have shown great reluctance (or perhaps inability) to develop an actual tort of invasion of privacy.xi The general standpoint of the courts appears to be that domestic law should not create or enforce a general right to privacy,xii though the reasoning behind this stance is difficult to ascertain. However, the European Court of Human Rights’ decisions on the matter have expressed that this standpoint of the UK breaches article 8,xiii though the coming into force of the Human Rights Act 1998 eased this criticism greatly. Decisions of the court which followed the implementation of the HRA gradually began to delineate the scope of the right to privacy afforded, and the landmark case of Douglas v Hello! Magazinexiv arguably led to the actual creation of a right to privacy. An original law of privacy has nonetheless not been established, and the overall effect of the decision of the above case has been questioned:xv rather the application and interpretation of article 8 ECHR and the expansion of the law of confidentiality has sought to define the law of privacy in the UK.xvi Similarly, the ambit of privacy is directly affected by section 12 of the Human Rights Act, which provides for freedom of expression. This was implemented in order to make the test for granting interlocutory injunctions which restrain interference with privacy much stricter: the co-existence of the two provisions require restrictions on the freedom of privacy to be justified.xvii This provision has further sought to entrench the importance and existence of the law of privacy in the UK. Practical and Moral Considerations? The case law which defines the law of privacy is irregular and difficult to narrow into specifically defined criteria. What are the underlying principles of the approach of the current law to its protection (or lack of) of the privacy of citizens? It is essentially possible to suggest that the courts are much less protective of the privacy of the celebrity. The courts appear to have taken a ‘common sense’ approach in that it evidently recognises that a genuine public interest in the life of the celebrity exists. Accordingly, information which fails to uncover private information does not amount to an infringement of privacy.xviii The rights of individuals as protected against the state are based on confusing principles, however. It seems that the state has taken care to reserve its right of interference in the privacy of individuals, based on elusive and broadly drafted justifications; this is an evident negative aspect of the vagueness of the law in this area. The controversial case of R v Brownxix highlights the degree to which the state considers the privacy of individuals to be justifiably subjected to considerations of morality. There is little further evidence of justification for prohibiting consenting adults from conducting acts of sado-masochism in the privacy of their own homes; the courts’ statement that it is a matter of public health conveys evident moral disapproval. Additionally, the increasing ‘need’ to access information on individuals has often been criticised as greatly detrimental to the right to privacy.xx Despite laws such as the Regulation of Investigatory Powers Act and the Data Protection Act claiming to taper the limits of potentials to infringe individual rights, they are “riddled with gaps and contradictions”.xxi Can any logical position of the law be located?xxii It is suggested that the decision of Campbell v Mirror Group Newspapers (MGN)xxiii ventured as far as to form a test for assessing whether an invasion of privacy has occurred. The court in this case created a test which enquires whether a reasonable expectation of privacy could be found, and whether interests in upholding the right to privacy outweigh the interests in infringing that right. If it is not apparent that the information is not intended to be private, then the court must examine whether an individual of ‘reasonable sensibilities’ would be offended if the information were to be released.xxiv This arm of the test has been criticised as embodying “a fairly bizarre subjective-objective test”.xxv In spite of criticisms aimed at the law and the considerable lack of a general right to privacy as a distinct established right, there is support for the contention that the ‘law’ of privacy is grounded in both practical and moral considerations. The general position that the famous have a lesser right to privacy than others conveys the practical approach that recognises that fame brings considerable attention, and the moral stance that an individual who chooses to live in the limelight should not be able to prevent the publication of every photograph of them – the potential for the floodgates to open here would simply be overwhelming. Additionally, the law in response to private individuals has grown and developed considerably as time has progressed: the law of privacy has moved from mere focus on property rights to the actual person and is now inclusive of the right to enjoy life. This conveys that “the common law, in its eternal youth, grows to meet the demands of society”.xxvi It is thus suggestible that both a practical and moral approach has been taken by the law. Yet what about infringements of the right to privacy? Does the approach of the law need a greater degree of moral and practical bases, or is its stance in terms of the general protection of rights causative of its permitting the infringement of rights in some cases? The courts have generally struggled to establish a balance between the freedom of expression of some and the protection of the privacy of others. This combined with the additional requirements that infringements of individuals’ right to privacy be for legitimate interests, the approach of the courts arguably needs both a moral and practical approach. Historically, infringements of the right of privacy of individuals have been allowed for reasons of public safety,xxvii as well as other similarly general interests which serve to outweigh the individual’s interests. The general approach of the courts to such cases seems to claim that the interests of the individual “may be outweighed by some other countervailing public interest which favours disclosure”.xxviii Conclusion It is thus apparent that both moral and practical considerations are relevant to the law of privacy in the UK; they are moreover necessary. However, circumstances may exist which cause the two approaches to be in direct conflict with one another, because the broadness of moral considerations is largely difficult to apply on a practical level. It seems that the court will generally favour and prioritise practicality over moral considerations when such conflicts between the two arise. Moreover, the evident lack of a general law of privacy has proven problematic; it appears that the problem has been assigned to the court which has reacted by "creating a sort of privacy law”.xxix There is no doubt that the court has been faced with a significant problem, especially when balancing human rights with privacy laws.xxx It is however clear that the law needs to be developed a lot more if its moral approach is to be clarified properly and clearly. The current law has a lot of gaps and grey areas which need to be filled and clarified if any appeal to a specific approach is to be made.xxxi Bibliography Arden, LJ, ‘Human Rights and Civil Wrongs: Tort Law Under the Spotlight’ [2010] PL 140. Deacon, R, Lipton, N & Pinker, R, Privacy and Personality Rights: Commercial Exploitation and Protection. (Jordan Publishing 2011). 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