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Overlooked: Surveillance and personal privacy in modern Britain 5 1. Introduction Writing about privacy presents a challenge. The subject matter is likely to change during the course of work, through the passing of new laws and interpretations made by courts. Disparate concepts of what ‘privacy’ is means that a single piece of work, conjoining state surveillance powers to media privacy to genetic privacy and so on is difficult. At the start of this work it was predicted the report would recommend a single piece of privacy legislation. This would extend and enhance the right to privacy contained in Article 8 of the European Convention on Human Rights (ECHR). It would also address the shortfalls in protection offered by the Data Protection Act 1998 (DPA). As work progressed it became apparent that attempting to address such a range of issues in a single Act would make it cumbersome and unwieldy. Even if desirable, the prospects of such legislation reaching the statute book would be remote. There are also non legislative aspects of privacy protection, such as good practice, that are of great importance. Good practice on the use of CCTV or on press reporting have a preventative benefit preferable to legal sanction after the event. The focus is primarily upon the public rather than private sector, this being Liberty’s traditional area of concern. However, as is pointed out later in the work on surveillance, the relevance of the private sector is increasing particularly in relation to the holding and dissemination of mass data. Notwithstanding this there must be some limitation on the subject matter which is why private sector use of data, and other private sector issues such as workplace privacy, are not considered. At the outset of the twenty-first century, it is clear that few public policy issues will attract more attention in the years ahead than the protection of privacy. Privacy is, to many concerned by ever increasing state powers of information retention and sharing, a right whose time has come. To others, privacy is seen as a hurdle preventing better law enforcement, counter-terrorism, public services and technological advancement. Privacy’s relatively recent arrival in the policy spotlight can be seen from the fact that those nations with written Constitutions and entrenched Bills of Rights have different forms of protection for privacy depending on when they were drafted. Older documents, such as the U.S. (1789), Irish (1937) and French (1958) Constitutions do not explicitly include a right to privacy, although their
6 Overlooked: Surveillance and personal privacy in modern Britain courts have subsequently found privacy to be an ‘unenumerated,’ ‘unspecified’ or ‘implicit’ right. However, recently drafted Constitutions tend to include a specific right to privacy, often including detail on different aspects of the right 1 . Increased concerns about terrorism mean that privacy is getting much more attention internationally – but for the wrong reasons. New laws and political decisions internationally reflect a growing interest in new surveillance technologies that governments trust will enable them to prevent terrorist attacks or effectively fight crime. In Britain, privacy’s time in the spotlight will continue for the foreseeable future. Continued attention from the courts also appears likely, given the rapid development of case law relating to privacy over the short period since the Human Rights Act 1998 (HRA) came into force. Media attention continues unabated as the courts continue to grapple with the competing demands of privacy and freedom of expression, and the question of whether there is a distinction between ‘the public interest’ and ‘what interests the public’. Future political attention to the issue of privacy is guaranteed by the fact that it is the Government’s stated aim to use increased data-sharing and data-matching across public sector boundaries as part of its drive for ‘joined-up government’ and to ‘modernise government’ 2 , but also by the fact that there is political awareness that such measures cannot be effective without public support 3 . Further, the Government has demonstrated through a range of statutory, regulatory and extra-parliamentary measures that it considers the value of privacy to be outweighed by a range of factors. Arguments put forward in favour of the Identity Cards Act 2006, surveillance and interception powers under the Regulation of Investigatory Powers Act 2000 and information sharing powers created by the Children Act 2004 all suggest that the right to privacy has not featured highly in the Government’s reckoning. However, privacy is increasingly an issue of national public interest. The national press carries stories about ‘snoopers’ and ‘Big Brother’ with increasing regularity. In November 2006 the Information Commissioner Richard Thomas introduced ‘A Report on the Surveillance Society’ 4 , specially commissioned for the 28th International Data Protection and Privacy Commissioners’ Conference. Its first paragraph began with a statement of fact ‘We live in a surveillance society. It is pointless to 1 For example the South African Constitution, section 14 (1996), Constitution of the Republic of Hungary, Article 59 (1989). 2 Performance and Innovation Unit Report (Lord Chancellor’s Department) Privacy and Data Sharing: The Way Forward for Public Services (April 2002). The government’s agenda in this regard does make provision for certain substantial privacy safeguards, but nevertheless there is cause for concern about possible legislation to allow sharing without consent. 3 ibid., particularly ‘Foreword by the Prime Minister’, p. 4; Elizabeth France, former Information Commissioner, “The right to know,” The Guardian, September 21st 2002 (“If government is seeking to gain our confidence it, more than others, must be ready to put in place the resources necessary to respond to our requests and to do so with a generous spirit where nuances of interpretation might allow argument aimed at restricting what might be released. To gain our confidence, crucial for the exploitation of new technology, government must set an example to others by demonstrating the importance of being open and accountable while respecting the right of each of us to private life.”). 4 ‘A Report on the Surveillance Society’ by Kirstie Ball, David Lyon, David Murakami Wood, Clive Norris and Charles Raab – http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/ surveillance_society_full_report_2006.pdf
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Overlooked - Liberty

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