Equality and Human Rights Commission Research report 69 Protecting information privacy Charles Raab and Benjamin Goold University of Edinburgh and University of British Columbia Equality and Human Rights Commission 2011 First published Summer 2011 ISBN 978 1 84206 347 7 Equality and Human Rights Commission Research Report series The Equality and Human Rights Commission Research Report Series publishes research carried out for the Commission by commissioned researchers. The views expressed in this report are those of the authors and do not necessarily represent the views of the Commission. The Commission is publishing the report as a contribution to discussion and debate. Please contact the Research Team for further information about other Commission research reports, or visit our website: Research Team Equality and Human Rights Commission Arndale House The Arndale Centre Manchester M4 3AQ Email: [email protected] Telephone: 0161 829 8500 Website: www.equalityhumanrights.com If you require this publication in an alternative format, please contact the Communications Team to discuss your needs at: [email protected] Contents Acknowledgements iii Executive summary v 1. Introduction 1 1.1 Background 1 1.2 The aim of the report 4 1.3 Structure of the report 6 2. The changing landscape of privacy 9 2.1 Introduction 9 2.2 Information privacy: challenges, concerns, and responses 10 2.3 Opportunities for reform 13 2.4 Summary 14 3. Why privacy matters 15 3.1 Introduction 15 3.2 Making a case for privacy 15 3.3 Privacy and the state 19 3.4 The future of privacy 22 3.5 Summary 24 4. Information privacy in the UK 25 4.1 Introduction 25 4.2 Overview of the current law 25 4.3 Statutory protections 26 4.4 Common law protections 43 4.5 Guidelines, codes of practice, and ‘soft law’ 44 4.6 Weaknesses of the current approach 44 4.7 Summary 45 5. Complementary approaches for enhancing privacy 47 5.1 Introduction 47 5.2 Self-regulatory approaches 47 5.3 Designing privacy protection into information systems 50 5.4 Public awareness and education 53 5.5 Some regulatory developments abroad 55 5.6 Summary 56 i 6. Moving forward 58 6.1 Introduction 58 6.2 Approach One: a principled foundation 60 6.3 Approach Two: enhanced protection via legislative reform 66 6.4 Approach Three: improving the current regulatory regime 70 6.5 Approach Four: an increased role for the common law 71 6.6 Choosing a new path for privacy 72 7. Proposals for reform 74 7.1 Introduction 74 7.2 Recommendations 75 8. Conclusion 79 References 80 Endnotes 86 ii Acknowledgements We are grateful to the Equality and Human Rights Commission for their support during the writing of this report, and to the various experts and referees who offered comments and suggestions at formative stages and on subsequent drafts. We also thank Fiona McGrath for providing invaluable assistance and for her help in the preparation of the final report. Charles Raab Benjamin Goold January 2011 iii iv EXECUTIVE SUMMARY Executive summary Background This report for the Equality and Human Rights Commission (the Commission) examines the threats to information privacy that have emerged in recent years, focusing on the activities of the state. It argues that current privacy laws and regulation do not adequately uphold human rights, and that fundamental reform is required. It identifies two principal areas of concern: the state’s handling of personal data, and the use of surveillance by public bodies. Privacy concepts have a long tradition in Britain and can be traced back in common law and, more recently, appear in the Universal Declaration of Human Rights. Today, the right to privacy is contained in Article 8 of the European Convention on Human Rights (ECHR), and is incorporated into UK law through the Human Rights Act (HRA) 1998. As a statutory body, the Commission has a duty to encourage compliance with the HRA and other human rights obligations under international treaties. Developments in information technology and the purposes of state policy and the private sector mean that we are now more vulnerable than ever to unwanted surveillance. There is a growing demand for personal information from both the public and private sectors. New technology allows organisations to store, analyse and share such information in increasingly complex ways. Although recent legislation has attempted to strengthen information privacy, the law has not kept pace with changes in technology and in the uses to which it is put. As a result, evidence suggests that the state is failing adequately to uphold the right to privacy. There has been widespread concern regarding the expansion of government databases and the processing of personal data. The Regulation of Investigatory Powers Act (RIPA) 2000, which governs the use of surveillance by the police, local authorities and other public bodies, is marred by ambiguity, leaving open the possibility of serious errors, inadvertent use of illegal surveillance techniques, and inappropriate use of surveillance powers. Surveillance is increasingly becoming a feature of everyday life in areas we previously considered private. There are concerns about the proliferation of CCTV and its lack of regulation, as well as about the potentially chilling effects of surveillance on, for example, peaceful protest. It is little wonder, in this context, that privacy has become a key public concern. Overall finding The central finding of this report is that the existing approach to the protection of information privacy in the UK is fundamentally flawed, and that there is a pressing v PROTECTING INFORMATION PRIVACY need for widespread legislative reform in order to ensure that the rights contained in Article 8 are respected. The report argues for the establishment of a number of key ‘privacy principles’ that can be used to guide future legal reforms and the development of sector-specific regulation. Key findings • The privacy landscape has been transformed in recent years by a series of landmark legislative reforms, including the HRA, the DPAs of 1984 and 1998, and RIPA. • There has also been a dramatic increase in the amount of personal information held by the public sector, due to technological developments and a steady expansion of the role of the state. • The current system has a weak, fractured and piecemeal approach to privacy. Acts such as the DPA and RIPA are riddled with gaps and contradictions, and are also interpreted, administered and overseen by a range of separate regulators, independent tribunals, and courts. As a consequence, it has become very difficult for individuals to understand what happens to their personal information, or what they should do when that information is misused. The current system has failed to protect privacy rights in a number of cases. • The problem is likely to become more acute. The state’s demands for personal information will continue to grow in relation to national security, law enforcement and citizens’ access to public services. So far, this expansion has been accompanied by only a relatively small increase in the powers or resources available to regulatory authorities such as the Information Commissioner’s Office or the various Commissioners in the field of surveillance. • A more flexible, comprehensive approach to privacy is needed, based on a firm commitment to Article 8 of the ECHR. This involves reforming the law and the regulatory system to create a comprehensive privacy protection regime to supersede the piecemeal inventory of measures or ‘tools’ implemented in a disjointed fashion by various agents. The relevant regulatory agencies need to be strengthened. • Law is essential: without legal specification of privacy rights, other instruments are likely to be incapable of providing the remedies that individuals may need. The law needs to be flexible enough to respond to the many and varied threats to privacy. vi EXECUTIVE SUMMARY • The principles written into law or underpinning it must be reflected in the specification of other instruments. These are seen as reinforcements and complements to the law and not as substitutes for, or weaker versions of, privacy laws. • There are many ways of protecting privacy in addition to legal provisions, including self-regulatory approaches, 'privacy-enhancing technologies', ‘privacy by design’, and public awareness and education. Such complementary, non-legal approaches to the protection of information privacy have an important part to play in upholding information privacy rights. Recommendations This report makes four main recommendations: (1) A clear set of ‘privacy principles’ should be developed and used as the basis for future legislation, and to guide the decisions of regulators and government agencies concerned with information privacy and data collection in different contexts. (2) Existing legislation that touches on privacy should be reformed to ensure that it is consistent with the privacy principles recommended earlier, and that it enhances – rather than undermines – the existing provisions of the HRA. At minimum, such reform should consolidate and improve the existing RIPA and data protection regimes in relation to information privacy and surveillance. (3) Greater regulatory coherence should be promoted. There should be an effort to rationalise and consolidate the current approach to the regulation of surveillance and data collection in the UK, with particular attention paid to the relationship between the various statutory Commissioners responsible for protecting information privacy. (4) Improved technological, organisational, and other means of protection should play an integral part in information privacy protection. The development and use of technological and non-legal solutions to the problem of information privacy protection should be encouraged by government, and more resources devoted to public education and awareness around privacy. The right to privacy is at risk of being eroded by the growing demand for information by government and the private sector. Unless we start to reform the law and build a regulatory system capable of protecting information privacy, we may soon find that it is a thing of the past.