A law of privacy developed by judges
There are many practitioners who believe that the incremental development of privacy law by the judges has proved infinitely preferable to the big bang of legislation. Legislation is a crude tool, too frequently failing to achieve the results its midwives intended. Take, for example, s 12 of the Human Rights Act 1998 or s 10 of the Contempt of Court Act 1981, neither of which achieved quite the protection for journalists that their advocates envisaged. Instead, following the Naomi Campbell case in the Lords in May 2004 (see Campbell v MGN Ltd  UKHL 22,  2 AC 457), we have a tort whose essence was described by Lord Nicholls as “the misuse of private information”. It is also now clear from the Strasbourg case-law and our own that neither the right to privacy nor that to freedom of expression has presumptive pre-eminence over the other. A balance has to be struck, applying the European doctrine of proportionality.
The Campbell case
Despite the division in the House, Campbell was the watershed. The difference of opinion related to the covertly taken photographs of Miss Campbell leaving her Narcotics Anonymous meeting in the King’s Road. The majority considered these photographs critical, even though there was an acknowledged public interest in exposing Miss Campbell’s public lies about not taking drugs and the photographs contained no information additional to that in the text. Lord Hope treated the photographs as greatly adding to the overall intrusion of the article. Lady Hale considered they harmed Miss Campbell by making her think she was being followed or had been betrayed.
Photographs in the street: Princess Caroline and JK Rowling
Many of the photographs of Princess Caroline had been taken in public places whilst engaged in innocuous activities, but she had been pursued by paparazzi over the years to the point of harassment. Nevertheless, as the Court of Appeal made clear in McKennitt v Ash  EWCA Civ 1714,  QB 73, the Convention’s statements of principle are directed at intrusion and not harassment. So that leaves us with the question whether Lady Hale was right to say Miss Campbell’s private life would not be damaged by publishing a photograph of her popping out to the shops for a bottle of milk. “Readers”, she thought, “would obviously be interested to see how she looks”.
The decision of the Court of Appeal in Murray v Express Newspapers plc; sub nom Murray v Big Pictures (UK) Ltd  EWCA Civ 446,  3 WLR 1360, where photographs had been taken (without harassment) of JK Rowling’s infant son in the street in his push-chair, puts a big question-mark over Lady Hale’s oft-quoted dictum. It must now be questionable whether the innocent curiosity of readers about appearance can any longer justify publication.
The facts in Murray were indistinguishable from the claim dismissed by the New Zealand Court of Appeal in Hosking v Runting  1 NZLR 1 in 2005. Here the judge’s decision to strike the claim out was reversed by the Court of Appeal – a result so demoralising for the defendants that they promptly settled once the Lords had refused permission to appeal.
In Murray the Court of Appeal’s perfectly reasonable conclusion that the photograph would not have been taken if the child had not been JK Rowling’s son raises the important question whether adults or children (or both) have a right not to be photographed in a public place without their consent, when the taking of the photograph did not amount to harassment and the photograph itself shows nothing embarrassing. If children have such rights, but not adults, the Court of Appeal has not provided a clear explanation why that should be the case.
Intrusion by the State
A quarter of a century after 1984, the legal principles protecting us from intrusion by the media are just as relevant when it comes to surveillance by the State. Here Parliament has intervened with the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 (“RIPA”), but such legislation has often proved ineffective, and occasionally counter-productive, in the halt of Big Brother’s march. No wonder that back in 2004 the then Information Commissioner, Richard Thomas, warned against our sleep-walking into “a surveillance society”. As the Lords’ Select Committee on the Constitution commented in February 2009: “Surveillance is an inescapable part of life in the UK”.
At risk of surveillance are our phone-calls, our e-mails, our Internet use, and even our exercising the dog. These are all at the mercy of what the Lords’ Select Committee called the gradual construction by successive UK governments of “one of the most extensive and technologically advanced surveillance systems in the world”. It makes it little better that this has been done with the best of intentions – the prevention of terrorism and fraud, the prosecution of crime and increased efficiency in the civil service and the NHS. But in much of this the government has lost sight of the essential principles of necessity and proportionality which underlie art 8 rights.
The Strasbourg test of social necessity is a stringent one, requiring the justification for any infringement of the right to privacy to be proportionate. Regrettably this seems to have been lost sight of in Whitehall and in town halls up and down the land. As recently as July the Chief Surveillance Commissioner, Sir Christopher Rose sounded an alarm call about the use of powers under RIPA. There was, he said, “a continuing failure on the part of authorising officers properly to demonstrate that less intrusive methods have been considered and why they have been discounted in favour of the tactics selected”.
The Lords’ Select Committee was also alive to the point: they considered that government agencies and private organisations involved in surveillance and data use should be instructed by the government on the implementation of art 8 rights, including the meaning of necessity and proportionality. They also recommended a complaints procedure and that “where appropriate, legal aid should be made available for Article 8 claims”.
By all accounts the UK leads the world in its use of CCTV with over four million cameras. Over £500 million of public money was spent on CCTV in the decade up to 2006 – at the expense of street lighting and neighbourhood crime initiatives. As the Lords’ Select Committee (which included Lords Lyell, Woolf and Pannick) pointed out, there needs to be “an independent appraisal of the existing research evidence on the effectiveness of CCTV in preventing, detecting and investigating crime.”
Thought also needs to be given to the use to which CCTV footage is put. Peck v United Kingdom (2003) 36 EHRR 41 in Strasbourg showed that whilst it may be permissible to use CCTV to monitor public safety on major roads, it is unacceptable to broadcast such footage publicly in the media or on TV, should it happen to catch an incident such as a suicide attempt. Not only did the European Court regard Mr Peck’s art 8 rights as having been infringed, they were also concerned that the absence of an effective remedy amounted to a breach of art 13.
In no area is the price of privacy more clearly eternal vigilance than that of data protection. The legislation is much too complex and far too often used by the uncomprehending as a bogus excuse for withholding information from the public which they have every right to know.
The Bar Council was not alone in its grave concern that in the Coroners and Justice Bill there should have been amendments to the Data Protection Act 1998 allowing personal information to be shared with government departments or others without any of the protections contained in the 1998 Act. Ministers would have been able to decide that personal information could be disclosed to third parties, in both the private and public sectors, on the ground that it was “necessary to secure a relevant policy objective”. It was a great relief when the government acceded to the clamour and removed the clause at Report stage in the Commons. Perhaps the sleep-walker is at last awaking from his slumber.
Desmond Browne QC is the Chairman of the Bar Council
[This is an edited version of a talk given to the Society of Conservative Lawyers at the Tory Party Conference in Manchester.]