Protection of the Right for Privacy - Essay Example

The lack of specific sta y legislation to deal with the media intrusion can be regarded as a weakness in English law. The Irish Privacy Bill 2006represents a model which could well be adopted in the UK.’ Critically evaluate the above statement   Introduction One of the most significant elements of the personal life is the right for privacy. However, it has to be noticed that this right is not protected equally within the particular states globally. Towards this direction, the intrusion of media which often occurs in someone’s personal life is evaluated differently both by the legislators and the courts globally. In UK there is no specific statutory provision for the protection of privacy. However, because the violation of personal life cannot remain in certain circumstances without punishment, for this reason, the courts use instead the principles of law that are related with Human Rights in general. In this context, Human Rights Act of 1998 is the most common legislative text used by courts in UK in order to provide protection to people that have suffered an intrusion to their personal life by media. It has to be noticed though that English courts deal with the issue only at the level that the relevant freedoms provided by the English law are violated. In accordance with the article 2 of the Human Rights Act of 1998 ‘Everyone’s right to life shall be protected by the law’ (article 2, par.1). Furthermore, Human Rights Act of 1998 include a series of articles that provide protection in many cases when human rights are been threatened. We can indicatively refer to ‘the right to liberty and security (article 5), the right to a fair trial (article 6), the right to respect for private and family life (article 8), the freedom of thought, conscience and religion (article 9), the freedom of expression (article 10), the freedom of assembly and association (article 11), the right to an effective remedy (article 13)’ and so on. At the European level, the right of privacy is also protected using the European Convention on the Protection of Fundamental Rights and Freedoms of 1948 as it has been amended by a series of protocols (no. 4, 6, 7, 11 and 12). An interesting legislative text in the area of protection of privacy is the Irish Privacy Bill 2006 which covers all possible aspects of personal life that can suffer an intrusion and violation. The right of privacy under the English law Generally, it has been stated by Ellis (1993, 85) that ‘British law recognises no statutory right to privacy but The Data Protection Act 1984 was the first Act to address this right, mainly in the limited area of the automatic processing of personal data; the debate over the opposing requirements of privacy and freedom of expression, especially with reference to the media has, over the last decade, generated a lot of discussion and disagreement’. The above researcher examines the case of privacy with a reference to the right to access and handle personal data. However, this is just part of the privacy violation phenomenon which needs to be faced by the authorized legislative bodies. Regarding specifically the protection of privacy provided by the English courts, it is noticed in the existing litigation that this protection can be limited to the point that that other freedoms recognized by the English law are not limited. In this context, in par. 11 of Venables & Anor v News Group News Papers Ltd & Ors [2001] EWHC QB 32 the court stated that: ‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary’. In this context, the media access to tapes containing personal data has to be examined as of its validity. Towards this direction, Wilson (1999, 45) stated that ‘some courts have denied access to tapes because of concern that publicity may influence potential jurors in upcoming trials; privacy concerns for people who appear or are mentioned in tapes also have led some judges to prohibit media access; journalists and legal scholars often argue that the right of access to criminal trial exhibits--including audiotapes or videotapes--should coincide with the right of access to criminal trials; allowing the media to copy and broadcast tapes presented at trials provides the right of access for the majority of the public who cannot attend the trial in person’. The media access to tapes can be considered as an access of a third party in a person’s personal data. In this case the comparison with the access of personal data kept in databases (of governmental or private institutions) is inevitable. Towards this direction, Woo (2006, 949) tried to explore how the development of information technology, especially interactive computers, changes the privacy environment as experienced by individuals and the policy implications of these changes; external entities, such as governments and commercial industries, that ‘invade’ people’s rights to be left alone are of less concern now than individuals who voluntarily give up their privacy by willingly providing personal information for other benefits on the internet; in the interactive environment, intended and unintended activities of more diversified and less easily identifiable entities have become more of a threat to individual privacy and in this way focusing on the right not to be identified on the network by allowing affirmative acts of secrecy and deception regarding identity and identification might be the most effective-and sometimes only practically viable-way of ensuring privacy in the interactive environment’. In other words, the lack of appropriate case law in cases related with the access to personal data can lead to severe failures in the protection of personal life and may lead to damages for the people involved. In order to explore the above phenomenon, Ellis (1993, 99) made a survey ‘carried out amongst a large number of UK media librarians and information scientists, and a smaller number of UK journalists; their knowledge of, and attitudes towards, the UK Data Protection Act and the EC Draft Directive on data protection were measured’. The above survey ‘demonstrated a reasonable level of knowledge about both pieces of legislation; it also showed that there is considerable concern within the UK media regarding the proposed EC Directive however journalists are likely to ignore the Draft Directive’ Ellis, 1993, 99). The above research proves that the legislative framework that protects the right to privacy in UK is very well structured and it is well known to most people of the country. However, it seems that when a case of violation of privacy may appear, the parties involved tend to forget the existed rules and use the lack of accurate provisions on privacy as a justification for their actions. In the European area the protection of privacy has been achieved as already stated mainly through the European Convention of Human Rights as it has been incorporated in the English domestic law. This issue has been examined by Woogara (2000) who referred especially to the protection of privacy rights of patients of NHS. The study of the above researcher showed that ‘privacy is a basic human right, and that its respect by health professionals is vital for a patient’s physical, mental, emotional and spiritual well-being however health professionals can violate patients’ privacy in a variety of ways; for example: the right to enjoy their property; the right to protect their medical and personal information as confidential; the right to expect treatment with dignity during intimate care; and the right to control their personal space and territory; some preliminary evidence indicates that many health care practitioners, including nurses, are presently unaware of the articles of the Convention and the implications of the Human Rights Act 1998’. Regarding the above phenomena of violation of privacy rights of patients in the NHS, it suggested by the above researcher that the best methods to protect patients from the violation of their rights is to proceed (the authorized governmental bodies) to the creation of an appropriate protocol that will ensure the protection of patients’ privacy rights in all their aspects. Regarding specifically the article 8 of the European Convention – a fundamental principle for the protection of personal life – it has been stated by the court in par. 1 of Venables & Anor v News Group News Papers Ltd & Ors [2001] EWHC QB 32 (8th January, 2001) that: ‘the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities; there may, however, be positive obligations inherent in an effective "respect" for family life; those obligations may involve the adoption of measures designed to secure respect for family life, even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals rights and the implementation, where appropriate, of specific steps; in both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the States margin of appreciation’. A critical issue regarding the application of article 8 of European Convention is whether the application of this article should be limited in some cases particularly when other rights are violated (hierarchy of protection) especially in reference to the media. In par.11 of Venables & Anor v News Group News Papers Ltd & Ors [2001] EWHC QB 32 the court held that: ‘Article 10, as applied to the media, is central to this case. It states, so far as it is relevant to these claims: 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...’ It seems from the above comments that the right of media to ‘intervene’ in a person’s life is considered as part of the ‘right of expression’ and as such right it is protected by the law. However, it is not made clear whether the right of expression as applied on media can be also possibly limited by another right and which right exactly this could be. From a similar point of view Hoffman LJ said, in R v Central Independent Television PLC [1994] Fam 192: ‘The motives which impel judges to assume a power to balance freedom of speech against other interests are almost always understandable and humane on the facts of the particular case before them; newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage; publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest; but a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom; freedom means the right to publish things which government and judges, however well motivated, think should not be published; it means the right to say things "right-thinking people" regard as dangerous or irresponsible; this freedom is subject only to clearly defined exceptions laid down by common law or statute’. It is clear from the above comments, that the right of expression is recognized as a fundamental right in the English common law. The position of the courts in UK is therefore favourable towards this right especially when the latter is being threatened by other rights, like the right to privacy, which is in any case not protected by a specific legislative text. Regarding the above issues, In R v Secretary of State for the Home Department ex parte Simms [1999] 3 WLR 328, Lord Steyn said at page 337: ‘Freedom of expression is, of course, intrinsically important: it is valued for its own sake; but it is well recognised that it is also instrumentally important; it serves a number of broad objectives: first, it promotes the self-fulfilment of individuals in society; secondly, in the famous words of Holmes J (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market." Abrams v United States (1919) 250 US 616, 630 per Holmes J (dissenting); thirdly, freedom of speech is the lifeblood of democracy; the free flow of information and ideas informs political debate; it is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them; it acts as a brake on the abuse of power by public officials’. Although the position of UK courts regarding the protection of the right of expression as ‘a priority’ towards the protection of right in privacy is clear, there are cases that the use of the relevant European legislation is considered as necessary. In this context, in Douglas v Hello Limited [2005] EWCA Civ 595 (par. 47) the court refers to the case of von Hannover v Germany (24 June 2004) and mentioned that ‘the ECtHR gave judgment in respect of a series of complaints by Princess Caroline of Monaco; they all related to press photographs of her that had been taken in public places; she contended that these infringed her privacy and had sought a remedy in a series of actions in the German courts, which had been unsuccessful; she alleged that these decisions of the German courts infringed her Article 8 right to respect for her private and family life: the ECtHR agreed: the Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life; these obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves; that also applies to the protection of a persons picture against abuse by others’. The application of article 8 of European Convention for the Human Rights is extensive. However, in many cases, English courts examine the issue whether the possible application of this article would come to opposition with the existed rules regarding the protection of other rights (especially of the right of expression with which right in privacy is usually related). In Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406 (House of Lords) Lord Hoffmann observed at paragraph 30 that ‘whether the law of confidence should be extended so as to protect privacy was a question which must wait for another day, but he went on to hold that there could be no question of the courts adopting some high level principle of privacy’. On the other hand, the use of European Convention as a supplementary legislative text towards the protection of right in privacy has been doubted in certain cases mostly because of its wide content and the lack of specific legal guidelines. In this context, in par. 1 of Venables & Anor v News Group News Papers Ltd & Ors [2001] EWHC QB 32, the court held that ‘the preliminary issue is whether the Convention applies to this case; it is clear that, although operating in the public domain and fulfilling a public service, the defendant newspapers cannot sensibly be said to come within the definition of public authority in section 6(1) of the Human Rights Act. Consequently, Convention rights are not directly enforceable against the defendants, see section 7(1) and section 8 of the Human Rights Act; that is not, however, the end of the matter, since the court is a public authority, see section 6(3), and must itself act in a way compatible with the Convention, see section 6(1) and have regard to European jurisprudence’. Towards the same direction but with a reference especially to the difference between the UK and the American law, in Campbell v MGN [2004] 2 WLR 1232 (House of Lords) Lord Nicholls of Birkenhead observed at paragraph 11 that: ‘in this country, unlike the United States of America, there is no over-arching, all-embracing, cause of action for "invasion of privacy"…But protection of various aspects of privacy is a fast developing area of the law here and in some other common law jurisdictions’. It should be noticed that the right in privacy as recognized by the law in many countries around the world, has a different content in the case of UK. More specifically, in some cases the existence of this right although recognized it is not considered as having the necessary basis for its protection by the law when the conditions of the whole case create an obstacle towards this direction. For this reason in Goodwin v United Kingdom [1996] 22 EHRR 123, p.145 the court refers to the case Camelot Group Plc v Centaur Communications Limited [1998] 1 All ER 251 where the Court Appeal ‘made an order for disclosure holding that the public interest in enabling the plaintiff to discover a disloyal employee who had leaked the plaintiffs confidential draft accounts to a journalist was greater than the public interest in enabling him to escape detection and that such an order was necessary in the interests of justice within Section 10 of the Contempt of Court Act 1981’. From a similar point of view in John v Express Newspapers Plc [2000] 3 All ER 257 the Court of Appeal ‘refused to make an order for disclosure where counsels opinion had been leaked to a newspaper journalist on the grounds that the counsels chambers had failed to conduct an internal investigation to identify the source of the leak and further that it had not been established that disclosure was necessary in the interests of justice’. The protection of the right in privacy in the above cases was considered by the court as not justified because there were other rights (regulated and protected by the law) that were suffered a violation. In the same context, in Saunders v Punch Limited [1998] 1 All ER 234 Lindsay J ‘refused to make an order for disclosure where the defendant published an anonymous article in its weekly magazine referring to unpublished records of meetings between the plaintiff and his solicitors in relation to an inquiry being conducted by the Department of Trade and Industry which led the plaintiff to believe that the magazine was in possession of those documents on the ground that the plaintiff had already obtained an injunction against the magazine to prevent any future publication of such privileged communications and that being so the interests of justice were not "so pressing in this particular case as to require that the ban on disclosure really needs to be overridden’. In other words, before granting a protection to the person that has suffered a violation in his/ her right of privacy the court examines carefully all the conditions of the particular case in order to evaluate if there are other rights that have been possibly violated. The reference to the European Convention is made when the conditions of the particular case permit the application of this legislative text. In this context, in Campbell v MGN [2004] 2 WLR 1232 Lord Nicholls (par 18) stated that ‘in reaching this conclusion it is not necessary to pursue the controversial question whether the European Convention itself has this wider effect; nor is it necessary to decide whether the duty imposed on courts by section 6 of the Human Rights Act 1998 extends to questions of substantive as distinct from questions of practice and procedures; it is sufficient to recognise that the values underlying articles 8 and 10 are not confined to disputes between individuals and public authorities; this approach has been adopted by the courts in several recent decisions, reported and unreported, where individuals have complained of press intrusion’. The above assumptions are in accordance with the judicial comments on the case of Goodwin v United Kingdom [1996] 22 EHRR 123 where the majority judgment of the Court stated (page 143): The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance; protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments of journalistic freedoms; without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest;  as a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected; having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest’. On the other hand, in Sunday Times v United Kingdom (1979) 2 EHRR 245 the European Court said at paragraph 65: ‘The court is faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted’. In other words, the European Court recognizes the value of the right of expression as a fundamental one however it makes clear that its interpretation has to be based on specific rules and principles trying not to cause violations in other rights as they are recognized and protected by the law. The Irish Privacy Bill 2006 – interaction with the English law The main characteristics of the Irish Privacy Bill 2006 are highlighted by the Irish Department of Justice, Equality and Law Reform. More specifically in a report published by the above authority [1] it is noticed that the Bill: ‘a) provides a clearly defined and comprehensive cause of action for violations of privacy,   b) takes into account the privacy guarantees stipulated in the European Convention on Human Rights, and the extensive development of those guarantees effected by decisions of the European Court of Human Rights, c) recognises the probability that there is a pre-existing cause of action in respect of privacy interests afforded by the Constitution and makes clear the scope of that cause of action,  d) provides a cause of action limited in its scope to conduct which is deliberate and intentional and e) provides a number of defences in an action for violation of privacy’. Regarding the particular legislative text it is noticed that ‘by drawing up a law to formalize the definition of privacy rather than let courts create a definition through jurisprudence, the law would place journalists on the defensive in a wide range of common circumstances; actions to be deemed as violating privacy include surveillance, which under the proposed law has a broad definition that includes listening to or watching an individual; the law also prohibits the use of a likeness, name or voice of an individual for financial gain without their consent (Crampton, 2006). Under these terms, the Irish Privacy Bill can be regarded as a valuable tool towards the protection of the right of privacy in general. However, it has to be noticed that because the practice of UK courts is different from that of Ireland, it is necessary that many amendments will take place before any initiative. Conclusion The protection of the right in privacy in English law is very limited. In fact it depends on the circumstances of each particular case that a punishment is imposed by the English courts for the violation of this right. However, the existence of an extended net of rules related with the Human Rights as well as of the European Convention of Human Rights can guarantee that the violations of this right can be reported to the courts and examined as of their appropriateness to be granted a protection. The Irish Privacy Bill of 2006 has to be regarded as a having a positive influence on the ‘verdicts’ of English courts regarding the recognition of violations of the right in privacy. However, until this right is fully recognized by the English law (i.e. not only indirectly as part of the rights included in the Human Rights Act of 1998), the right in privacy will remain just a theoretical concept and a part of the personal life in general. References Crampton ‘Irish plan on privacy puts media on notice’ [2006] International Herald Tribune accessed on 12 March 2007 Irish Department of Justice, Equality and Law reform (2006) available at http://www.justice.ie/80256E01003A02CF/vWeb/pcJUSQ6RDQ4L-en S. Ellis ‘Legal issues for information professionals, Part III: Data protection and the media—background to the Data Protection Act 1984 and the EC Draft Directive on Data Protection’ [1993] Journal of Information Science 19(2): 85-97 accessed 12 March 2007 S. Ellis ‘Legal issues for information professionals, Part IV: Attitudes to data protection amongst UK media librarians’ [1993] Journal of Information Science 19(2): 99-117 accessed 12 March 2007 S. Wilson, ‘A Proposal for Media Access to Audiotapes and Videotapes Presented during Trials.’ [1999] Communications and the Law 21(1): 45-52 accessed 12 March 2007 J. Woogara ‘Human Rights and Patients’ Privacy in UK Hospitals’ [2001] Nursing Ethics 8(3): 234-246 accessed 12 March 2007 J. Woo ‘The right not to be identified: privacy and anonymity in the interactive media environment’ [2006] New Media & Society 8(6): 949-967 accessed 12 March 2007 J. Wadham, H. Mountfield, A. Edmundson, ‘The Human Rights Act 1998’, 3rd edition, 2003 R.K.M. Smith, ‘International Human Rights’, 2nd edition, 2005 M. O’ Flaherty, ‘Human Rights and the UN: Practice before the Treaty Bodies’, 2nd edition, 2002 Legislation European Convention on the Protection of Human Rights Human Rights Act of 1998 Irish Privacy Bill 2006 Case Law Camelot Group Plc v Centaur Communications Limited [1998] 1 All ER 251 Campbell v MGN Ltd [2004] WLR 1232 (6 May 2004) Douglas & Ors v Hello Ltd. & Ors [2005] EWCA Civ 595 (18 May 2005) Goodwin v United Kingdom [1996] 22 EHRR 123 John v Express Newspapers Plc [2000] 3 All ER 257 R v Central Independent Television PLC [1994] Fam 192 R v Secretary of State for the Home Department ex parte Simms [1999] 3 WLR 328, Venables & Anor v News Group News Papers Ltd & Ors [2001] EWHC QB 32 Wainwright v Home Office [2003] UKHL 53 Read More