Privacy and Injunctions - Evidence - Parliament

David Price QC, Gavin Millar QC, Gillian Phillips, solicitor, Director of Editorial Legal
Services ,The Guardian, and Reynolds Porter Chamberlain—Oral evidence (QQ 33–64)
and if every time we lapse we will get clobbered maybe that is not an incentive to go into
public life. My opinion is that we are better served by freedom of expression and minimum
restrictions, even if that means that from time to time people will suffer. I think it is the best
safeguard we have for the abuse of power, and it is a way for people to let off steam. I am
afraid I am with Paul Dacre on someone letting off some steam after 10 hours’ work in a
Sunderland call centre. Sometimes it is grubby but it is just human exchange; it is what
people want to communicate and read. We also have libel laws that hopefully protect
against publishing false information. With privacy, what we are dealing with is true
information that is to the discredit of a person, not false information.
Q839 Lord Hollick: You have all expressed important reservations about the
difficulty of striking the right balance between these two principles. I think the strong
message that comes across is that you feel it is far too much in favour of privacy. Short of
repealing the legislation, which is what Mr Price would like to do, and going back to “publish
and be damned”, what measures can we take? I entirely take your point that there is a
moral dimension to this, but the reality is that it ends up in the legal system. Therefore, as
we struggle to reconcile these matters, what recommendations do you think we should
consider, both legislative and procedural—for instance, spelling out more clearly what the
public interest might be—to try to redress the balance that you believe has gone too far in
favour of privacy?
Keith Mathieson: One thing you could do would be to introduce a test of
seriousness and substantiality into the issue of whether there is a prima facie case of privacy
infringement. At the moment, even very trivial, in my opinion, infringements of personal
privacy are actionable. A couple of other members of the panel have mentioned this. For
example, where the choice of somebody’s flowers at their wedding has been revealed by the
press it is likely to be considered an infringement of their private life. That does not seem to
me to be the kind of thing that the courts and the law of privacy should be troubling
themselves with, but at the moment they have to. I do not know how you deal with the
public interest. That really comes in more at the threshold expectation of privacy stage than
the balancing exercise between privacy and public interest. I think it is very difficult to
legislate for that. You will always be dependent on judges making their assessments on the
particular facts of the case, but at least getting rid of trivial cases, as the Joint Committee on
the Draft Defamation Bill is thinking of doing in relation to trivial libels, would perhaps be a
starting point.
Gavin Millar: I repeat that I think the test for a prior restraint injunction should be
higher and that can be done consistently with Strasbourg case law, provided other adequate
remedies are given to people after publication to complain that their privacy has been
infringed. That is very important. It is terribly difficult for Parliament to find a way to say to
judges they should adopt a broader notion of what is a debate in the public interest, but I
think it would be worth a try, perhaps by framing a clause setting out some factors that
should be taken into account in favour of freedom of expression and the public interest that
are not dealt with in the cases at the moment. I would have thought that one of them is the
extent to which that person profits from their own image.
I think that could be done, provided it is not prescriptive and is done subtly in a
statutory provision indicating the sort of factors that ought to be considered in assessing the
public interest. It would at least enable defence lawyers to argue all the possible points and
in that way maybe broaden the judge’s understanding of what is a debate in the public
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