Legal/Finance
with Chris Felton, of Gardner Leader
In this month’s legal question time, Gardner Leader’s Dispute Resolution Partner Chris Felton reviews some of the key issues arising out of the ongoing furore over a subject which just will not go away.
Privacy laws have been almost a permanent feature in the media over recent weeks and there is no sign of this letting up.
The debate about balancing an individual’s privacy and the right to freedom of expression has drawn in “super-injunctions”, stories involving premiership footballers, celebrities and other rich and famous. The separation of powers between Parliament and the Judiciary has also come under scrutiny. All of this is gathering pace by the outpouring of information and public opinion via social media sites on the internet.
Despite all this coverage, the overriding view of the public seems to be that UK privacy laws are in a state of confusion, and that it is only the wealthy who can afford to benefit from them.
Here are some of the key issues in the debate:
Where does UK privacy law emanate?
There is no doubt that privacy law is the new kid on a very old block! There is no common law right to privacy in the UK, and in the recent past individuals have had to seek protection indirectly through other legislation (e.g. for harassment and unlawful use of personal data).
This all changed with the introduction of the Human Rights Act in 1998 (HRA). HRA brought into UK law the European Convention on Human Rights (ECHR) and this brought with it (the now familiar) Article 8 – which expressly provides for the right to have private life respected.
Article 8 has been the mainstay argument used in a number of high profile privacy cases since its ratification into UK law. The watershed case involved Radio One DJ Sarah Cox suing The People newspaper over nude photographs taken of her while on her honeymoon. Following in her wake there has been Michael Douglas, Naomi Campbell, Jamie Theakston and Max Mosley to name but a few.
Even looking at the judgments in these cases it is clear that privacy law is fast developing and is very much in its infancy.
So what is a super-injunction?
These are a new phenomena developed really only this year and following stories like that of John Terry.
The injunction is a common remedy in many media cases but the super-injunction is an order of the court where the claimant cannot be named and their details are omitted to protect their privacy. Those injunctions are intended to be enforceable against the world at large – and as such are arguably a very powerful weapon in seeking to protect privacy.
The debate however has raged as to whether these injunctions go too far and beyond the intended scope of Article 8. Additionally there is an argument that they only protect the “dirty linen” of the rich and famous.
So is it down to Parliament or the courts to sort out?
A key feature of the debate has been whether the confusion surrounding UK privacy laws is down to Parliament (as the law maker), or the Judiciary (as those who apply the law). This “separation of powers” argument between the two has been interesting to the observer - with one critical MP using Parliamentary Privilege to protect himself against what may otherwise have been beach of an injunction; to the judiciary adopting a clear “get your tanks off our lawn” approach to applying the law.
One view is that privacy laws (and super-injunctions) have been created by judges - and that this is undemocratic. The other might be that it was Parliament who passed the HRA which creates not only the right to privacy, but also the right to freedom of expression!
So what’s next?
There is no doubt that privacy laws are going to get some serious attention from Parliament and the courts over the next few years. It is in fact vital that they work together to ensure the right balance is struck between privacy and freedom of expression in the increasingly challenging online world.
For more information on this, or any other legal advice for your business, contact Chris Felton, of Gardner Leader LLP on (01635) 508080 or email c.felton@gardner-leader.co.uk.
www.gardner-leader.co.uk.
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