Privacy and Information Everyone Knows

Today the Court of Appeal have given judgment on the question of whether to lift the injunction on publication of information concerning the sex life of a well known celebrity. They unanimously decided that the injunction should be lifted, but a stay of their order has been granted until Wednesday to enable the possibility of a further appeal to the Supreme Court to be heard (if the injunction were immediately lifted there would be no point in any further appeal).

 

Private Information and Defamation Contrasted

If I publish a story about you that is defamatory, it does not matter that this story is in the public domain, nor does it matter that I am simply repeating a story that has been told to me. The gist of the wrong is the damage to the claimant’s reputation, not that the story is private or unknown. So an injunction should be available to a right-holder even where the story is already in the public domain. This is a wrong that can be repeated over and over again.

 

The right to private information is quite different. The gist of the wrong is that private information is being disclosed. It is not the gist of the wrong that my reputation is damaged. If therefore the information is no longer private, it follows that the wrong cannot be repeated. Once the information is in the public domain, it can no longer be a wrong to publish it.

 

The decision of the Court of Appeal seems, at least to me, to be confused in at least two respects. First (at [47] (iii)) the court seem to think that publication today of the identity of the celebrity in question would still constitute a wrong to him or her.This seems doubtful as information that is now known by over half of the population cannot be described any longer as private (I inadvertently discovered the celebrity’s identity on twitter this afternoon).

 

Second the court seem to think that the defendant is in breach of article 8 of the European Convention on Human Rights  (see [40], [41], and [47]). This is complete nonsense. The Convention imposes no duties on private persons at all. The duty is a matter of judge made law. The judges have, rightly or (in my view) wrongly, decided that this right should reflect the right under the Convention but there is no question whatsoever of a breach of Article 8.

 

The decision no longer to restrain publication seems correct, but would a claim for damages now succeed? The answer should in principle be no (although the court indicate it would be yes). Publication of information that is now in the public domain should no longer be actionable. If the injunction had not been sought, the initial publication putting the information into the public domain would have been wrongful, and so actionable in damages. But now it is too late.

 

Ironically then, by seeking the remedy of an injunction, the claimant may have now lost the right to any remedy at all.

 

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Privacy and Harassment

“Privacy” is a portmanteau term that contains within it many different interests. I have discussed one right, that to private information, and my doubts about it. Another is the right to be free from harassment. This was introduced in the United Kingdom by the Protection from Harassment Act 1997. There are at least two good reasons why this legislation does not fall foul of the objections to the right to private information that I have given.

 

First, being harassed by another can inhibit us from leading our lives as we would choose. If I pick up a telephone call and am subject to ‘heavy breathing’ at the other end, I may find this distressing and find myself reluctant to answer the phone. If a stalker is found outside my house staring at me every day, I may be reluctant to leave my home. This kind of behaviour by another if repeated can inhibit my freedom to live my life. The reason that the legislation requires the defendant to have pursued a ‘course of conduct’. is that a one off action by another, being sworn at for example, does not have this effect upon us. It is the repeated conduct which is designed to inhibit the behaviour of another that is the gist of the wrong.

 

Second the Act has democratic legitimacy. We may criticise it for being somewhat open textured (‘harassment’ is not expressly defined) but it is the product of our Parliamentary process. It is not the product of the judiciary creating a new right overtime, without apparent consideration of why they were doing so.

 

The right to private information about ourselves has neither of these features. That the conduct sought to be restrained is apparently valueless (as is publication of a celebrity’s sex life) does not provide a good reason for the state to exercise its power to stop it.

Privacy and Human Rights

A judicial change to the law that has come about over the last 25 years or so, for lawyers the blink of an eye, is the  development of a general right to private information about ourselves. The purpose of this post is to query, not denounce, this development. From the cases themselves, no good reason is given for this change, but that does not mean that none can be given.

An Example

A typical example of the new legal position is the decision of the Court of Appeal in PJS v News Group Newspapers Ltd. The Sun newspaper sought to publish a story concerning a well known celebrity who, in a long term committed relationship, had engaged in sexual activity with other people, including a ‘three way’ with another couple. An injunction restraining publication was granted.

 

The History

The right to private information as it now exists grew from the law of confidence. Under the traditional rule, where one party acquired information about another in  a relationship of confidence, he came under a duty of non-disclosure. A typical example would be that of solicitor and client. If a solicitor discovered that his client was an habitual drug user, he could be restrained from publishing this information. This kind of duty of confidence is easy to justify. The duty of confidentiality is part of what the solicitor has (implicitly) undertaken to do for his client. Although the law of confidence originated in the courts of equity, it is analogous to  more general voluntarily assumed duties, such as that of one contracting party to another.

 

Third parties, such as a newspaper, could also be liable if they published the information that they knew came from the solicitor’s breach of duty to his client. This is also analogous to the other general duties that third parties to contractual or fiduciary relations owe. Third parties must not procure one party to breach his contract or assist a fiduciary to breach his duties. It is wrongful to damage the relationships of trust that people have formed.

 

Overtime however, this traditional picture changed, culminating in the decision of the House of Lords in Mirror  Group Newspapers v Campbell. Here it was held that there is a general right to private information about ourselves, which the law will protect regardless of any pre-existing voluntarily assumed relationship of trust and confidence. One might expect that such a major change in the law would have been supported by careful reasoning as to what justifies the rights we have, and why the old law was too narrow. In fact there is little more than a statement that our private lives are a good thing and deserve protection.

 

Defamation

If I have a right against you that you do not do something, you have no liberty with respect to me to do it. Conversely, if you have a liberty with respect to me to do something, I have no right that you do not.

 

All rights restrict liberties. In a world of absolute liberties we would each be free to kill one another. In such a world none of us could be secure to pursue the ends we wish. The central purpose of law is to enable each of us to have that security, in a system of equal freedom. That requires the recognition of rights not to be physically injured or restrained, rights to property, and rights not to be deceived.

 

It also requires a right to our reputations. If people thought I was a violent, delusional, murderer, I would not be able to form the necessary relationships with others so as to pursue my goals. Nobody would give me a job, I’d be ditched by my girlfriend, my blog would go unread, and my small band of twitter followers would desert me.

 

The gist of the wrong of defamation is not the falsity of what has been said, but rather that my reputation will suffer in the eyes of reasonable people. It is a necessary right in a system of equal freedom.

 

This interest in our reputations may be outweighed by other concerns. In particular,  each of us has an interest in knowing the truth about the world as it is. Human knowledge is an incommensurable human good. So, it has long been the law that a defendant has a defence where he can show on the balance of probabilities that what he has said is true.

 

Private Information Contrasted

Unlike defamation, the new right to private information is not dependent upon any injury to the claimant’s reputation. It is not necessary to show that anybody would think any worse of him. It is enough if the information would be reasonably expected to be priivate. Publication of such information would not however seem to inhibit the claimant’s ability to pursue whatever goals they choose. It does not seem to be required by a principle of equal freedom.

 

Bad Arguments

What other arguments for such a right could there be?

Upset and Embarrasment

One seemingly strong reason is the upset and embarrassment disclosure of facts about ourselves to the general world would cause. (Indeed, a blogger who chooses to anonymise himself behind a Mondrian symbol, even when solely writing dry pieces of legal analysis, might be thought to consider this an overwhelmingly good reason.)

 

If we did think this the gist of the wrong, it would justify a much larger set of rights than we currently have. As I have argued elsewhere, the law does not and should not recognise any general right not to be caused upset. Being miserable or upset is unpleasant but it does not constrain our abilities to lead our lives as we see fit.

 

If we think insults are not sufficiently serious to be actionable (and the law rightly takes the position that they are not) then it necessarily follows that the misery caused by the disclosure of facts about another cannot alone justify their being actionable. Publication of facts about the world has an inherent value that gratuitous abuse does not.

 

Put another way, if we weigh the commercial interest of the Sun  and the prurience of its readers on the one hand, and on the other the distress to the individual and family of the person whose private life is being revealed on the other, we might conclude that that justified some kind of legal intervention. But it does not.  There are many and diverse ways of upsetting other people that are wholly wanting in virtue. That is not a good enough reason for the recognition of a legal right.

 

Personal Preference

Clearly Ms Naomi Campbell had a preference that others did not know that she had attended a drug use rehabiltation center. Is such a rational preference a sufficient grounding reason for a right?

 

Again the answer must be no. I am currently typing on a bus travelling to London. Many passengers clearly prefer that others do not sit in the seat next to them, some placing their bags there to deter them. Does such a preference, however strongly held, provide a good reason for the recognition of a right to it? No.

 

Public Policy

Some legal rules are not required by the principle of equal freedom, but are justified on public policy or social welfare grounds. The criminalisation of racist abuse is an example I have discussed elsewhere.

 

It is hard to see what public policy requires the non-publication of embarrassing stories about celebrities. Will it unaccceptably deter people from becoming celebrities or discourage people from engaging in threesomes? This must be doubtful.

The Human Rights Dimension

The rights that we have under the European Convention on Human Rights are exigible (ie good against) the UK State. Under the Human Rights Act which  incorporates the Convention into UK domestic law these rights are exible against the organs of the state, ie public bodies including courts.

 

It is a fundamental mistake to think that this gives the same rights against persons generally. An easy and obvious example is the right to education. I have a right against the UK that it secures this human good for me. That does not entail that you have any right against me that I secure your education. Similarly the right to life under the Convention entails that the State sets up a police force to protect us. Other individuals are under no such duty.

 

Although not making the mistake of thinking that the Convention applies horizontally between persons, or making the error of thinking that equivalent rights to those against the state are required against persons generally, the courts were clearly influenced in their willingness to expand the common law by the existence of the Convention’s right to privacy. Worse, the courts clearly consider that the ‘balancing’ of the right to private life under article 8, against the right to freedom of expression under article 10 should be conducted in the same way as between persons as it is under the Convention between citizen and State.

 

This is an error. The right to privacy under the Convention can be satisfied by a signatory state in any number of different ways (eg education of citizens, the criminal law etc) without requiring a parallel private right between persons. Further the European Court of Human Rights does not seek to resolve where the right to freedom of expression (or privacy) should optimally be drawn. Rather it determines when a State’s conduct is sufficiently serious to warrant being a breach of international law: a quite different question. How a State behaves is given leeway under the so-called margin of appreciation. The question of whether and to what extent we should have a right against persons generally to private information about ourselves is not one the European Court of Human Rights can under the Convention be asked to resolve.

Herding

In a superb recent article on sugar, Mr Ian Leslie has described the problem of herding that can arise within scientific disciplines.  A similar problem can arise in law. So certain has the orthodoxy become that a right to privacy is justified, and should be expanded, that we nowadays rarely look back and query whether we were right to come this way. In other common law jurisdictions (eg Australia) the change that has occurred in England has not happened.

 

I am not sure whether we are right to have recognised a right to private information, but I have as yet not heard the good argument that justifies it.