Privacy

Standard Note: SN/HA/5978

Last updated: 23 May 2011
Author: Grahame Danby
Section Home Affairs Section

The incorporation into UK law of the European Convention on Human Rights has led to the
development of privacy law. This note summarises the effect of the Human Rights Act 1998
and the recent controversies over the use of injunctions and super-injunctions.

A particular tension exists between the Conventions‟ Article 8 right to privacy and the Article
10 right which provides for freedom of expression. The Human Rights Act provides that the
courts have particular regard to the right to freedom of expression. In many other European
countries the balance is shifted more towards securing privacy of the individual.

A super-injunction is a court order which requires that, when an injunction is in place, its very
existence may not be disclosed or published. Following concerns over the use of super-
injunctions, notably in privacy cases, the Master of the Rolls (Lord Neuberger) set up a
committee which reported on 20 May 2011. Three days later, the Attorney General (Dominic
Grieve) announced that a joint committee of both Houses would be established to investigate
further. One particular matter is the ease with which injunctions and super-injunctions can be
circumvented by the internet and newspapers outside England and Wales.

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Contents
1 Privacy and Europe 2
1.1 United Kingdom 2
1.2 Other European countries 3
1.3 Data protection 5

2 Injunctions, super-injunctions and “hyper-injunctions” 5

3 Report of the Committee on Super-Injunctions 6

1 Privacy and Europe

1.1 United Kingdom
The Council of Europe, based in Strasbourg, covers virtually the entire European continent,
with its 47 member countries including all member states of the European Union and Russia.
This provides for some commonality in privacy laws by dint of the European Convention on
Human Rights, Article 8 of which bears repeating here:

Article 8 – right to respect for private and family life:

1. Everyone has the right to respect for his private and family life, his home and his
correspondence.

2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interest of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.

This offers a qualified right to privacy. While it binds public authorities directly, courts have
applied it “horizontally” to private organisations, one rationale being that public authorities
such as governments should put in place laws to ensure the European Convention is
respected. In March 2004, the Joint Committee on Human Rights added further commentary
in the context of the Human Rights Act 1998 which incorporates the Convention formally into
UK law:

86. Although the Human Rights Act imposes direct obligations to protect Convention
rights only on public authorities, the Act does allow the Convention rights to have some
impact on the development of the law in the private sphere. The Act's limited horizontal
effect arises from two provisions. First, under section 6, the courts as public authorities
have a duty to protect Convention rights and therefore to apply the law, in all cases
before them, in a way that complies with these rights. Second, the duty to interpret
legislation compatibly with Convention rights "so far as is possible to do so", under
section 3, also applies in all cases, including those involving purely private bodies.

87. The extent of the "horizontal" application of the Human Rights Act as between
private parties has been the subject of extended academic debate, but it is generally
accepted that these provisions fall far short of full horizontal effect, which would apply

2
 the obligation to comply with Convention rights to both private and public persons on
an equal basis...1

The Article 8 privacy rights, already qualified, have also to be balanced by other convention
rights, notably, in the case of the press, by Article 10:

Article 10 – freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.

During the passage of the Human Rights Bill 1997/98, Lord Wakeham proposed an
amendment which would have excluded the application of what is now section 6 of the Act to
disputes between two private parties.2 The amendment was withdrawn – a fact that has
contributed to the development of privacy law by the courts (but see below).3

Hugh Tomlinson QC has offered the following remarks:

... the “privacy” issue caused considerable anxiety in media circles when the Human
Rights Bill was before parliament: in addition to Lord Wakeham‟s amendment, the
press suggested a provision giving them immunity from the provisions of the Act or the
removal of Article 8 from the incorporated rights. Instead, the Government inserted
section 12 of the Human Rights Act: this provides that the courts had to have
“particular regard” to the right to freedom of expression and could not grant interim
remedies unless satisfied that the applicant is “likely to establish that publication should
not be allowed”. This places a higher hurdle in front of privacy injunctions than that
which applies in other cases (where it is only necessary to show a “serious issue to be
tried”)4

1.2 Other European countries

The tension between Articles 8 and 10 creates an opportunity to adhere to the Convention in
ways that are different but still within the “margin of appreciation” afforded individual states.
A Guardian article has commented:

In much of continental Europe, there is a stronger and more enshrined tradition of

privacy than in the UK. This has offered more protection to the public, but has also
allowed several high profile politicians to lead the sort of colourful private lives that
would have been splashed across newspaper stands in England for weeks on end.

Duncan Lamont, media partner at City solicitors Charles Russell LLP, said: "In
Germany and France there is a long tradition of privacy and the press adhere to it. But

1
Joint Committee on Human Rights, The Meaning of Public Authority under the Human Rights Act, HL 39/HC
382 2003-04
2
HL Deb 24November 1997 cc771-87
3
Privacy – the way ahead? Part 3 – Options for the Future – Hugh Tomlinson QC (May 2011)
4
Privacy: the way ahead? Part 2 – Hugh Tomlinson QC (May 2011)

3
 there has also been a long, and perhaps scandalous, tradition of public figures –
[former French president François] Mitterrand for one – getting away with no intrusion
into their private life that would not be possible here." 5

Some additional background has been given by the Culture, Media and Sport Committee in
its February 2010 report, Press standards, privacy and libel (HC 362 2009-10):

11. Before we pass on to considering the impact of the Human Rights Act, it should be
noted that the approach to privacy law in the UK both before and since 2000 stands in
contrast to the approach elsewhere in Europe. In France, for example, the right to
privacy is held to be implicit in the constitution, and the French Civil Code has included
a specific right to privacy since 1970. Rights to control over personal information have
been strictly interpreted by the French courts. In Germany, meanwhile, the Federal
Constitutional Court has recognised the citizen's right to personal respect, including a
right to control one's own image in private life. A German court held that the publication
of photographs of Princess Caroline of Monaco with her children breached her
constitutional rights. In Italy recently, too, Prime Minister Silvio Berlusconi has had
recourse to privacy laws over the use by Italian and Spanish publications of
photographs taken at private parties he held, which were allegedly attended by escort
girls.

12. Privacy laws tend to reflect the media cultures in which they operate, and, as we
were reminded during our visit to Spain, these can be very different from the UK's.
Staff at La Vanguardia told us that their newspaper would publish a story about a
footballer having an extra-marital affair, but not a story about a politician having an
affair. They explained that this was because the footballer's professional performance
might be affected while the politician's would not, and also because readers would not
be interested in a politician's affairs. The same news values do not apply in Britain.

Colleagues in the Italian Chamber of Deputies have provided the following commentary in
the context of a new, and ongoing, study6 on press and media freedom in Europe:

... it is a moot question whether the freedom of information finds a specific limit also in
the so-called right to personal privacy (which is not specifically provided for in the
Constitution).

In the Italian system the right to privacy is guaranteed, also by means of punishment
under the criminal code, by the so-called „privacy code‟ (legislative decree no. 196 of
2003) which promoted the adoption of an ethical code by journalists. Although the
above-mentioned Legislative Decree no. 196, for the purpose of compatibility between
the right to privacy and the right to inform (arts. 136 et seq.), provides specific
guarantees regarding the treatment of personal data by journalists, it is generally
recognized that compatibility exists between the right to the protection of such data and
certain forms of publication of information and news in which the public or collective
interest prevails; in particular, in order to be legitimate, the publication of the
information must be essential to the news reported; the regulation of privacy hinges on
the criterion of essentiality.

This has echoes of the public interest justification available to British journalists in the Press
Complaints Commission‟s Editors’ Code of Practice.

5
“Superinjunctions, injunctions and privacy laws around the world”, guardian.co.uk, 26 April 2011
6
Request 1706, Press and Media freedom in Europe, European Centre for Parliamentary Research and
Documentation

4
A celebrated example from the Russian press was reported by the New York Times on 19
April 2008. A Russian newspaper, the Moskovsky Korrespondent, had published rumours
about the private life of the then President Vladimir V. Putin. Publication of the paper was
subsequently suspended, reportedly for financial reasons.

1.3 Data protection

The Data Protection Act 1998 is probably the closest we in the UK have to a statutory privacy
law – even here the press enjoy an exemption,7 provided there is a reasonable belief that
publication would be in the public interest.8 Data protection laws are largely harmonised
across the EU. Russia provides a prominent example of a non-EU state that has in recent
years continued to develop analogous legislation of her own.9

2 Injunctions, super-injunctions and “hyper-injunctions”

A super-injunction is a court order which requires that, when an injunction is in place, its very
existence may not be disclosed or published. A recent Guardian article reported on the
prevalence of such injunctions:

The first superinjunction may have been taken out in 2008: it may even still be in force
today, although the nature of these legal orders means that in some cases it is not
even possible to report on their existence. Since then, though, their use has
proliferated. The best current legal estimates are that there are somewhere between
30 and 50 in existence today, but it is hard to be definitive, as not all have been served
on the Guardian.

On 24 February 2010, the Culture, Media and Sport Committee published a report on Press
standards, privacy and libel which considered, among a detailed discussion of privacy law
and other matters, the use of super-injunctions and their impact on parliamentary debate.
Reproduced below are two of the Committee‟s recommendations, followed by the
Government‟s response, the latter being published in April 2010:

2.20 The free and fair reporting of proceedings in Parliament is a cornerstone of

a democracy. In the UK, publication of fair extracts of reports of proceedings in
Parliament made without malice are protected by the Parliamentary Papers Act
1840. They cannot be fettered by a court order. However, the confusion over this
issue has caused us the very gravest concern that this freedom is being
undermined. We therefore repeat previous recommendations from the
Committee on Parliamentary Privilege that the Ministry of Justice replace the
Parliamentary Papers Act 1840 with a clear and comprehensible modern statute.
(Paragraph 101)

2.21 We welcome the Speaker’s determination to defend freedom of speech in

Parliament, as well as the comments by the Lord Chief Justice on the Trafigura
affair, and strongly urge that a way is found to limit the use of super-injunctions
as far as is possible and to make clear that they are not intended to fetter the
fundamental rights of the press to report the proceedings of Parliament. Given
the importance of these issues, we hope that a clear statement regarding the
way forward is made before the end of this Parliament. (Paragraph 102)

2.22 The Government believes that freedom of speech in Parliament is fundamental

and that accurate reporting of parliamentary proceedings is essential in a democratic

7
section 3, DPA 1998
8
section 32, DPA 1998
9
Law on Personal Data Protection (Law No. 152-FZ of 27 July 2006)

5
 society. As the Committee has stated, the Parliamentary Papers Act 1840 protects
publications of extracts from or abstracts of parliamentary reports, papers, votes or
proceedings, provided that such publication is bona fide and without malice. The
Government will consider the possibility of putting the provisions of the Parliamentary
Papers Act 1840 into a modern statutory form when a legislative opportunity arises.

2.23 The Government joins the Select Committee in welcoming the comments made
by the Lord Chief Justice on the use of super-injunctions and takes seriously the
concerns expressed by the Committee over the use of super-injunctions. However, as
stated by the Lord Chief Justice in his statement, there are cases where injunctions
imposing reporting restrictions, even those which prevent the reporting of the injunction
itself, are appropriate: such as in some family, fraud or national security cases. For
example, in a fraud case, reports of the mere existence of an injunction might alert the
accused‟s associates, who may then dispose of their assets. The Government notes
that never has an injunction been sought or granted with the intention of preventing
press reporting of parliamentary proceedings.

2.24 The Master of the Rolls has now set up a committee to look at the issues relating
to superinjunctions and other injunctions which bind the press, with a view to producing
evidence-based recommendations for any necessary changes to the Civil Procedure
Rules and Practice Directions (see above).

The above-mentioned committee established by the Master of the Rolls (Lord Neuberger)
reported on 20 May 2011 (see below).

Hugh Tomlinson QC has set out the general privacy background, including the following
observation:

Although section 12(4) of the Human Rights Act provides that, when considering
whether or not to grant an injunction which might affect the right to freedom of
expression, the Court must "have particular regard to the importance" of this right, this
does not mean that the right should be given precedence.

A recent blog, Privacy law: the super-injunction is dead, includes background on so-called
hyper-injunctions:

We should also mention so-called “hyper-injunctions”. This was a term introduced by

John Hemming MP in a debate in Westminster Hall on 17 March 2011to describe an
injunction which prohibits a person from contacting his MP. The only example he cited
was from a 2006 commercial case which apparently concerned an allegation that paint
used on the water tanks of passenger ships could be poisoning the water (the case he
referred to was a court order recording an agreement which was not an injunction at
all, see the Head of Legal blog post about Mr Hemming‟s speech and in particular the
comments on the post). Nothing else is known about the 2006 case or about the
reasons why such an order was made. As a number of privacy lawyers commented at
the time, there no suggestion that such a provision has been included in any privacy
injunction. In short, not only are “hyper-injunctions” not a “new form” of privacy
injunction – they appear to be limited to a single example made some 5 years ago in a
non-privacy case.

3 Report of the Committee on Super-Injunctions

The Committee on Super-Injunctions was set up by the Master of the Rolls (Lord Neuberger
of Abbotsbury) in April 2010. It reported on 20 May 2011. The Committee‟s terms of
reference were:

6
  To examine issues of practice and procedure concerning the use of interim
injunctions, including super-injunctions and anonymised proceedings, and their
impact on the principles of open justice bearing in mind section 12 of the Human
Rights Act 1998;

 To provide a clear definition of the term super-injunction; and

 Where appropriate, to make proposals for reform, and particularly to make

recommendations for any changes to the Civil Procedure Rules (CPR) and Practice
Directions.

The Committee made recommendations on the following:

 The practice and procedure governing interim injunctions which restrict freedom of
speech, including super-injunctions and anonymised injunctions;

 The use of specialist judges to determine applications for super-injunctions;

 Super-injunctions and the reporting of Parliamentary proceedings;

 The collection of data about super-injunctions, and anonymised injunctions, and the
communication of information concerning the same to Parliament and the public.

The Committee did not consider what it called issues of substantive law reform. Examples
would have been the development privacy law under Article 8 of the European Convention
on Human Rights and the introduction of a pre-notification requirement by media
organisations. The latter has been proposed by Max Mosley though a Strasbourg judgement
found against him, referring to the “chilling effect” on free speech that any requirement to
notify the subject prior to publication would have.

Among the Committee‟s conclusions and recommendations are the following:

Serious concerns have been frequently expressed about issues both of substantive
law and of policy relating to privacy and freedom of speech, the balance to be struck
between them in a democratic society and the proper application of section 12 of the
Human Rights Act 1998 (HRA s12). Such issues can only properly be considered and
resolved by judges in individual cases before the courts or, at a more general level, by
Parliament legislatively.

[...]

Article 9 of the Bill of Rights 1689 recognises and enshrines a longstanding privilege of
Parliament: freedom of speech and debate. It is an absolute privilege and is of the
highest constitutional importance.

Any attempt by the courts to go beyond that constitutional boundary would be

unconstitutional. No super-injunction, or any other court order, could conceivably
restrict or prohibit Parliamentary debate or proceedings.

[...]

Where media reporting of Parliamentary proceedings does not simply reprint copies of
Hansard or amount to summaries of Hansard or parliamentary proceedings they may
well not attract qualified privilege.

7
 Where media reporting of Parliamentary proceedings does not attract qualified
privilege, it is unclear whether it would be protected at common law from contempt
proceedings if it breached a court order...

Commenting on press reaction to the Committee‟s report, the International Forum for
Responsible Media Blog stated:

The Neuberger report has given the media some of what it wants – in particular, pre-
notification of injunction applications and confirmation of the already existing position
(as discussed on this blog) that “super-injunctions” are effectively dead. But, as is
plain from the reporting we have mentioned, this is highly unlikely to be enough. The
tabloid media wants an end to privacy injunctions of all kinds – back to the good old
days of kiss n‟ tell, trading off threatened sex stories for media cooperation and all the
traditional methods of the popular media. In this endeavour it is backed by a number
of headline hungry politicians who can now invoke the ancient privileges of parliament
in support of the constitutional right to publish tittle tattle. Far from ending the battle
between media and judiciary the Neuberger Report seems to be in danger of opening
a second, parliamentary, front. The next few weeks may demonstrate whether this
leads to truce or constitutional crisis.

On 23 May 2011, the Attorney General (Dominic Grieve) told the House of Commons that
the Prime Minister had asked for a joint committee of both Houses to investigate the use of
privacy orders. One particular, and topical context, is the ease with which injunctions and
super-injunctions can be circumvented by the internet and newspapers outside England and
Wales.