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A Critique of English Privacy Law Under the Human Rights Act

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A Critique of English Privacy Law Under the Human Rights Act Durham E-Theses Balancing Privacy and Free Speech: A Critique of English Privacy Law under the Human Rights Act THOMPSON, KATHERINE,LAURA How to cite: THOMPSON, KATHERINE,LAURA (2013) Balancing Privacy and Free Speech: A Critique of English Privacy Law under the Human Rights Act, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/9398/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 BALANCING PRIVACY AND FREE SPEECH: A CRITIQUE OF ENGLISH PRIVACY LAW UNDER THE HUMAN RIGHTS ACT Katherine Thompson MJur Thesis Durham Law School, University of Durham CONTENTS Chapter 1. Privacy and Free Speech: Theoretical Perspectives ............................................... 2 Chapter 2. The Development of Indirect Horizontal Effect in the Context of Privacy Law under the Human Rights Act ............................................................................................ 21 Chapter 3. The Reasonable Expectation of Privacy .............................................................. 44 Chapter 4. The Ultimate Balancing Exercise .......................................................................... 77 Chapter 5. Conclusion .............................................................................................................. 107 Bibliography ............................................................................................................................... 118 1 CHAPTER I PRIVACY AND FREE SPEECH: THEORETICAL PERSPECTIVES Introduction This chapter will introduce the subject of the thesis from a theoretical perspective and outline the research questions to be discussed. The definition of privacy will be narrowed, for the purposes of this thesis, to the right to informational autonomy, or control over private information. The term ‘balancing’, used in the title, refers to the values underlying both privacy and free speech which are considered in this chapter. Discussion of the justifications for effective legal protection of privacy and free speech, in this context, will develop a suggested theoretical model for privacy protection. Having presented both privacy and free speech as strongly supported in theory, and often furthering the same goals, the chapter will conclude by considering the utility of the model when the two rights appear to clash. Given that much privacy-invading speech is not strongly supported at the theoretical level, the model will provide a means of critiquing the balance struck by domestic courts and the ECtHR within current ‘privacy’ law. Privacy Theory As one commentator notes, privacy is a ‘sweeping concept’1 covering issues as varied as the storage of personal information by organisations, protection from searches of the home and interception of communications, protection of reputation and control over what is done to one’s body. The potential breadth of privacy has led some writers to conclude that ‘the quest for a singular essence of privacy leads to a dead end. There is no overarching conception of privacy’.2 In the case of media invasions of privacy, the concern of the law is with misuse of personal information.3 The term privacy, within this 1 D J Solove, Understanding Privacy (Harvard University Press 2008) 1. 2 ibid ix. For a similar view see R Wacks, The Protection of Privacy (Sweet & Maxwell 1980) 21. 3 R Wacks, Privacy and Press Freedom (Blackstone Press Limited 1995) 23. 2 thesis, will therefore denote informational autonomy, a concept discussed in greater detail below. To draw out the philosophical arguments in favour of the protection of informational autonomy this chapter will take the view that privacy is best understood, in this context, by identifying the values promoted by its protection.4 Exploring these principles reveals that the legal protection of privacy is essential to the development of both individuals and society collectively. Informational Autonomy As mentioned, the concern of the law to protect individuals against press invasions of privacy is rooted in the notion of informational autonomy. Often described as the right to ‘selective disclosure’,5 informational autonomy refers to the right to control the flow of information about oneself.6 The term is used to suggest the right to determine whether, in what manner, and to whom the dissemination of personal information may occur. Substantive autonomy, in contrast, refers to the ability to make decisions regarding personal life and exercise choice. Substantive autonomy, in terms of its connection with informational autonomy, will be considered in greater detail below. A number of issues related to substantive autonomy, such as the right to abortion and the right to die, are not relevant in this particular context and so will not be considered. A further interesting aspect of informational autonomy is that in protecting one’s right to select certain information to be disclosed, the concept might cover the inaccurate presentation of oneself to others. Rachels takes the view that people often construct an image to be portrayed depending on the audience and situation.7 This has also been termed control over ‘editing one’s self’.8 He concludes that ‘[t]here need be nothing dishonest or hypocritical in any of this, and neither side of his personality need be the 4 Gavison’s reasoning will be employed here; ‘[t]he strength of…justifications depends on the extent to which other goals promoted by privacy are considered important, and on the extent to which the relationship between the two is established’. R Gavison, ‘Privacy and the Limits of Law’ (1980) 89(3) The Yale Law Journal 421, 441. An alternative view is that privacy is merely an aspect of the right of property; a number of distinctive rights may have elements of privacy but they lack a common foundation. See J Jarvis Thomson, ‘The Right to Privacy’ (1975) 4(4) Philosophy & Public Affairs 295. 5 E L Beardsley, ‘Privacy: Autonomy and Selective Disclosure’ in J Roland Pennock and J W Chapman (eds), Privacy (Nomos XIII) (Atherton Press 1971) 56. See also C Fried, ‘Privacy’ (1968) 77(3) The Yale Law Journal 475, 483; D Feldman, ‘Secrecy, Dignity, or Autonomy? Views of Privacy as a Civil Liberty’ (1994) 47(2) CLP 41, 53. 6 C Fried, ‘Privacy’ (1968) 77(3) The Yale Law Journal 475, 482; D Feldman, ‘Secrecy, Dignity, or Autonomy? Views of Privacy as a Civil Liberty’ (1994) 47(2) CLP 41, 53. 7 J Rachels, ‘Why Privacy is Important’ (1975) 4(4) Philosophy and Public Affairs 323, 327. 8 R Gavison, ‘Privacy and the Limits of Law’ (1980) 89(3) The Yale Law Journal 421, 450. 3 “real him”, any more than any of the others’.9 Moreover, people frequently present and perceive false impressions in the course of daily social interactions. In domestic law, celebrities have often been termed role models and, consequently, a public interest has been found in publishing information exposing their false image.10 This concept will be reconsidered in chapter 4, concerning the balance of privacy and free speech, but for present purposes, it is enough to say that informational autonomy appears to be furthered by protecting the right to project a public image, even when it does not mirror private life.11 Moreover, a privacy claim need not automatically be defeated by a false image, in the balance with free speech. The concept of informational autonomy, as a sub-set of the right to privacy, gains support from the other related values of self fulfilment, dignity and substantive autonomy, considered in the following discussion. These values, it will be argued, are threatened by failure to protect informational autonomy. Self-Fulfilment and Dignity As Feldman observes; ‘[a]ny attempt to identify a single interest at the core of privacy is doomed to failure, because privacy derives its weight and importance from its capacity to foster the conditions for a wide range of other aspects of human flourishing’.12 Another way of putting it might be that ‘privacy is essential to the creation and maintenance of selves’.13 One aspect of the self-fulfilment argument is that privacy creates space for the development of intimate relationships. As Fried suggests: [A] threat to privacy seems to threaten our integrity as persons. To respect, love, trust, feel affection for others and to regard ourselves as the objects of love, trust and affection is at the 9 Rachels, ‘Why Privacy is Important’ (n 7) 327. Griffin makes a similar argument; ‘[n]ot all persons whose appearance differs from their reality are thereby hypocrites. A homophobe, whether homosexual or not, who acts hostilely towards homosexuals solely because they are homosexuals is unjust. The injustice deserves exposure. That is the public interest. But if the homophobe is himself also homosexual, to publicise that further fact is protected neither by the other’s freedom of expression not the public’s right of information. On
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