Overlooked - Liberty

100 Overlooked: Surveillance and personal privacy in modern Britain
publication of personal information’. The courts have tried to tread a fine line between the two
concepts, always alluding to them together and often as inter-dependent. Nevertheless, there
appears to be a need for a new apparatus to safeguard each separately – confidentiality and privacy.
Legislation
The courts have on many occasions called upon Parliament to address privacy concerns at a
legislative level. Indeed, cynics might comment that parliamentarians might be the first people to
support a law protecting the privacy of the individual. A new Act addressing media privacy would be
a bold move for Parliament, but might ultimately prove fruitful. Any legislation would impose rights
and obligations between individuals and might further impose an obligation on the State to take
positive measures to protect privacy. The question of what facts or circumstances are to be
considered private would need to be tackled. It is unlikely that an exhaustive definition could be
offered. However, clearer guidance than we now have should be envisaged. Legislation would need
to make clear when liability would be triggered – would this be at the point of intrusion or of
disclosure of information If the latter, intrusions and disclosures by the media would come under
stiffer censure than other intrusions, such as those where there is no disclosure of information,
resulting in a need for a proliferation of legislation. One must question whether it would be in the
interests of society as a whole to penalise the media in this way.
Any Act would need to establish the type of liability imposed – this could be civil, criminal or a
combination of both. Definition, or at least delineation, of what constitutes the public interest would
be needed 204 . In light of Strasbourg jurisprudence on this issue, it is likely that the contribution to
the debate of a general interest test would be used. This is retrograde would surely be received with
dismay by the press. A list of alternative defences should also be determined.
It is arguable that the above has already been considered and adequately determined by developing
case law. The benefit of an Act of Parliament to a complainant, however, lies in the ability to use it
as a sword, in order to force a defendant to justify an invasion. The obvious difficulty that remains is
the inability of legislation to conduct the balancing exercise between privacy and freedom of
expression. Often, it is not a question of whether privacy has been breached, but the issue of how
invasion of the right can be justified in context. This requirement is central to the recognition of the
competing rights and cannot be conducted other than on a case-by-case basis.
This difficulty was raised by the Government in its responses to the Culture, Media and Sport Select
Committee’s report entitled Privacy and Media Intrusion 205 . The report contains various
recommendations as to how the law of privacy might be developed in England and Wales. One of
the recommendations made by the Committee is that Parliament should take on its proper legislative
role and make legislative proposals in order to clarify the extent and nature of privacy protection. The
Committee sees this as necessary in order to satisfy obligations under the Convention.
This recommendation has been met with a negative response. The Government reason that the
introduction of privacy legislation is both unnecessary and undesirable, stating that the balancing of
free speech and privacy rights is different in every case and therefore the quintessential task of the
204
The experience of the drafting of the public interest aspect of the Irish equivalent of the Reynolds, or
Jameel, defence in the 2006 an 2007 Defamation Bill suggests that it can be dangerous for a parliament
to seek to define such concepts.
205
Fifth Report of Session 2002-03, Volume 1.