GUEST BLOG: EDGAR FORBES ON PRIVACY - COMMERCIAL COMMODITY OR HUMAN RIGHT?

Our guest blogger, Edgar Forbes, is Senior Lecturer in Media Law and Intellectual Property at Bournemouth University. Edgar writes:

It’s official. There is no Right of Privacy in the UK. Forget promises by the European Convention on Human Rights or the Human Rights Act that “Everyone has the right to respect for his private and family life, his home and his correspondence” are there to protect privacy. Nor, it would seem, do these legislative provisions require English law to recognise privacy as a fundamental human right.

In rejecting that English law should recognise a tort of privacy Lord Hoffmann in Wainwright and another v Home Office [2003] UKHL 53 (16 October 2003) states: “There seems to me a great difference between identifying privacy as a value which underlies the existence of a rule of law (and may point the direction in which the law should develop) and privacy as a principle of law in itself”. The judgment narrows the scope of privacy and steers the law away from the more rights-based approach seen in recent cases. Privacy proponents had been cheered by Sedley LJ’s approach in Douglas v. Hello! Ltd that “The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy”. While not rejecting Sedley LJ’s approach outright, Lord Hoffmann decided to dismiss it as “a plea for the extension and possibly renaming of the old action for breach of confidence”. This was echoed in Lord Scott’s dictum “whatever remedies may have been developed for misuse of confidential information, for certain types of trespass, for certain types of nuisance and for various other situations in which claimants may find themselves aggrieved by an invasion of what they conceive to be their privacy, the common law has not developed and overall remedy for the invasion of privacy”.

So why is there such a judicial reluctance to embrace privacy per se? In his judgment Lord Hoffmann made reference to the US tort of privacy but, citing Dean Prosser’s taxonomy (Dean Prosser: The Law of Torts, 4th ed 1971), concluded that it required privacy to be broken down into a number of ‘loosely-linked torts’ which casts doubt upon the value of any high-level generalisation. “English law has so far been unwilling, perhaps unable, to formulate any such high-level principle”.

Whether unwilling or unable, the approach of the House of Lords is that (1) there are sufficient laws and legal principles that can extend to cover alleged violations of what people ‘conceive’ to be their privacy; (2) the fact these laws exist is sufficient to satisfy the requirements of the European Convention and Human Rights Act and (3) since it is for the legislature to make laws, it is for Parliament and not the Courts to formulate them. The UK legislature has thus far avoided any attempt at formulation. The 1990 Calcutt Committee and the recent Government response to the 5th report of the Culture, Media and Sport Select Committee on Privacy and Media Intrusion (published 16 June 2003) concluded that neither a right to privacy nor a right to freedom of expression were absolutes ― they should be weighed against each other. This was, the report concluded, best left to self-regulation.

Where serious intrusions occur, self-regulation seems to have provided insufficient remedy and is confined to those it seeks to regulate. The Press Complaints Commission states that the “use of longlens photography to take pictures of people in private places without their consent is unacceptable” yet decided that a beach was not sufficiently private a place when newscaster Anna Ford complained about the publication of close-up shots of her on holiday. Similarly a park was not a private place when actress Kate Beckinsdale complained about pictures of her and her daughter in a park. Meanwhile Radio 1 DJ Sara Cox was awarded an out of court settlement for unwanted holiday snaps of her and her partner. So where’s the rationale? Is a lack of legal principle leading to haphazard protection of values?

In Douglas v. Hello!, Michael Douglas and Catherine Zeta Jones were awarded damages for an illicit photograph taken at their wedding, which they had already commercialised by selling the exclusive image rights to OK magazine. So they invite photographers to a private occasion and get damages while others are lying on a beach minding their own business and can’t claim for the longlens intrusions they suffer. How can this be? In short, if you commercialise your image or private life, the law can furnish protection through one of its traditional tort based remedies. If you have not put a monetary value on your privacy and rely on it being a moral right, then tough. The House of Lords has confirmed that the law is unwilling or unable to help.

Lord Hoffmann refers to privacy as a value rather than a principle, an approach that perhaps explains why the law seems happy to entertain a commoditised version of privacy as a property right rather than a fundamental human or moral right. How else can it be that such an intimate violation as an improperly conducted strip search (as in Wainwright) is unworthy of remedy. How can someone be interviewed and photographed in a hospital bed (see Kaye v. Robertson [1991] FSR 62) and the courts not find that his privacy was invaded because he did not own or occupy the hospital room and his body was not touched (so no trespass occurred). How can Lord Hoffmann admit that the European Court concluded that the UK did not offer Geoffrey Peck (see Peck v. United Kingdom) adequate remedy after CCTV images of him were widely publicised without his consent but then deny it has anything to do with privacy. Mr Peck was suicidal and was caught on CCTV attempting to slit his wrists. After the images had been viewed by over 9 million people on prime time television Lord Hoffmann still felt able to dismiss such a gross intrusion on privacy as showing “no more than a need, in English law, for a system of control of the use of film from CCTV cameras which shows greater sensitivity to the feelings of people who happen to have been caught by the lens”.

So is that what the Government says is best left to self-regulation? Is the fact that no existing tort was committed and Mr Peck had not tried to sell his image rights on the CCTV sufficient argument to deny Mr Peck a remedy? The European Court declared that it was not. Yet the House of Lords has made no attempt to embrace the message in that judgment or the spirit of the European Convention in their judgment in Wainwright. So what does this mean for privacy? The law will protect things derived from people’s private life such as information, images or reputation yet it seems unwilling to protect privacy per se. In other words, the law will recognise the property rights attached to privacy ahead of personal or moral rights.
This shifts the legal imperative from protection of a human right to protection of a commercial value in that right. Privacy has become an intellectual property right.